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LawInformedAI 23

Yes, the attorney and the defendant were reasonable in believing that the conversation was confidential.

MPRE

An attorney specialized in criminal defense work, and at one point she agreed to represent a client who was multiple charges for gang-related criminal activities. While the client was in county lockup, inmates there from a rival gang assaulted him, necessitating his hospitalization. The attorney visited her client in the hospital to discuss a pending plea offer from the prosecutor. Both the client and the attorney believed, with good reason, that they were having a confidential conversation. Unbeknownst to them, however, a doctor was eavesdropping on their conversation, and the doctor subsequently contacted the prosecutor and repeated the entire conversation. Armed with this new evidence, the prosecutor revoked the pending plea offer, proceeded with the prosecution, and called the doctor to testify at trial about the conversation. The attorney argued that her conversation with her client came under attorney-client privilege and was therefore inadmissible at trial. Is the attorney correct in this assertion?

No, because the privilege belongs to the client, and the plaintiff here owns the privilege.

MPRE

A former employee is suing Conglomerate Corporation. The employee claims that Conglomerate fired him as retaliation for uncovering internal corruption at the company. While he still worked for Conglomerate, the employee had several email exchanges with Conglomerate’s in-house counsel about the problems he had uncovered and the consequences for reporting them. Now that litigation has ensued after his termination, he requests production of all his email exchanges with in-house counsel (he no longer has access to the company’s email server). Conglomerate’s lawyers assert that these conversations are privileged, because the emails were between a Conglomerate employee and its corporate counsel. Would the emails come under the protection of attorney-client privilege, given these facts?

No, because the prosecutor declined the offer of disclosure at the time, and the privilege survives the client’s death.

MPRE

Two codefendants stood trial on an arson charge, each represented by separate counsel. The first defendant, through his attorney, offered to tell the prosecutor about some valuable eyewitnesses that would help the prosecution’s case against the other defendant, in exchange for a plea agreement that included no jail time for the first defendant. The prosecutor declined the offer and continued with the prosecution of both defendants. The first defendant, who had offered to make the disclosures, died unexpectedly in a violent prison fight. The prosecutor then called the deceased defendant’s attorney and asked him to disclose whatever information he had about these additional witnesses that would strengthen the case against the remaining defendant. The attorney was unsure about whether attorneyclient privilege applied, but the prosecutor insisted it did not apply after the defendant’s death. Is the prosecutor correct?4

No, because the attorney was participating as a business advisor in this meeting, not providing legal services.

MPRE

The corporate officers of a large hospital were trying to decide whether to provide free HBO and Showtime (and other subscription cable channels) to all the televisions in the patient rooms. Corporate counsel participated in these meetings due to his familiarity with the pricing of these channels and what other hospitals in the area were doing in this regard. Later, the hospital finds itself in contract litigation with its cable provider, and the opposing party requests disclosure of the comments and discussion in this meeting. The hospital’s corporate counsel objects that this meeting was privileged communication because of the participation of the attorney in the meeting. Is he correct?

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

MPRE

An attorney represented a personal injury plaintiff in a lawsuit. While trying to find potential witnesses to support the client’s litigation claims and personal credibility, the attorney met with several people neighbors and friends of the client, asking about the incident that injured the client, as well as the client’s character and past behavior. One of the client’s neighbors told the attorney several disturbing stories about wild parties at the client’s house, and disreputable character who frequently visited the home. Later, at trial, the defendant sought to compel the attorney to disclose the information conveyed by the client’s neighbors. The attorney objected that this information falls under the attorney-client privilege and is therefore inadmissible. Is the attorney correct in this assertion?

No, because privilege normally survives the death of the client.

MPRE

A client had a confidential conversation with his attorney seeking legal advice. The client died a few weeks later. The client had pending litigation at the time of his conversation with the attorney, and the opposing party seeks disclosure of the conversation, because opposing counsel believes the client had instructed the attorney to accept the opposing party’s settlement offer, up to a certain amount. The attorney is continuing the claim on behalf of the client’s estate, and he refuses to settle or to disclose the contents of the conversation. Should the court compel the attorney to reveal whether the client wanted to settle the case before he died?

The client played the recording at home for his friend to get his advice and input.

MPRE

An attorney sometimes recorded his interviews with clients, after obtaining permission from the client, especially when the client was recounting a long narrative about events that transpired, which had given rise to litigation. The opposing party in one lawsuit sought discovery of the recording of the client’s narrative of the events to the attorney. Which of the following is most likely to result in the recording being discoverable?

Yes, because these are business communications, not legal advice from the lawyer to the client.

MPRE

Attorney Stevenson works in-house as General Counsel for Conglomerate Corporation. Conglomerate’s Chief Financial Officer (CFO) resigned suddenly. Due to his background in corporate finance and economics, Conglomerate’s Board of Directors asked Attorney Stevenson to serve temporarily as the acting Chief Financial Officer, until they could find a permanent replacement to fill the position. Attorney Stevenson divided his time evenly between corporate financial operations and legal tasks for the company, such as contract review, regulatory compliance, and supervising the outside firms that handle the company’s litigation. His financial responsibilities included reviewing financial reports and forecasts, investment strategy proposals, and various emails or memoranda relating to the firm’s financial affairs. An opposing party in antitrust litigation against the corporation seeks to compel production of some of Attorney Stevenson’s financial reports and strategy proposals, but he claims these come under attorney-client privilege, as he simultaneously serves as the in-house lawyer for Conglomerate Corporation. Are the documents discoverable at trial?

The court should compel disclosure because attorney-client privilege normally does not apply in disputes between trustees and beneficiaries.

MPRE

An attorney handled the estate planning for an elderly client, which included the creation of a spendthrift trust, with the client’s grandchildren as the beneficiaries. The trust document stipulated that disbursements to the beneficiaries were discretionary until they reach the age of 25. The client has now died, and the attorney who drafted the trust document for the client serves as the trustee. The beneficiaries, ages 21-23, have sued, seeking larger and more frequent disbursements from the trust. During discover, the plaintiffs request production of all documents relating to the creation of the trust and the testator’s intentions about disbursements – emails and memoranda between the deceased client and the attorney. The attorney, now the trustee, claims that these communications come under the protection of attorney-client privilege. How should the court rule?

Yes, given these facts, the crime-fraud exception to attorney-client privilege would potentially apply.

MPRE

Walter White conferred confidentially with his attorney, Saul Goodman, about how to resolve a specific legal problem. Attorney Goodman suggested shredding documents and hiring some thugs to beat up the other party in the matter, leaving them with a warning to stay away from Walter White. White, the client, proceeds with this plan. Later, when White faces criminal prosecution for the assault-for-hire, the prosecutor seeks disclosure of any conversations he had with his attorney about hiring thugs to carry out the assault. Predictably, Attorney Goodman argues that the conversation comes under the protection of attorney-client privilege. Is the prosecutor correct to demand disclosure?

Yes, because the public relations firm is not the client.

MPRE

Conglomerate Corporation’s recent litigation has received unfavorable media attention, so the corporate directors have hired a public relations firm (Afflatus, Inc.) to handle media relations and help boost the company’s image. The directors have also asked their attorney, who is handling their litigation, to meet with the Afflatus staff, explaining the company’s litigation position and how to answer media inquiries without giving statements that might bind the corporation to a disadvantageous legal position. The attorney opened his presentation with a declaration that the meeting was confidential, and that some of the information shared would be privileged. A few months later, the opposing party learns that this meeting occurred and seeks discovery of the PowerPoint slides the attorney used in the presentation to the public relations firm. Given these facts, would these the slides be discoverable at trial?

No, because the statements are communications protected by the attorney-client privilege.

MPRE

Conglomerate Corporation had an accident occur at one of its chemical manufacturing facilities – a large explosion killed several workers and injured many others. Soon after the incident, at the behest of Conglomerate’s corporate managers, the general counsel obtained statements from employees and other witnesses about what happened, memorializing the statements in written form. Later, the family of an employee killed in the accident sued Conglomerate, and the plaintiffs’ interrogatories included a demand for the contents of the written statements taken by the corporate general counsel. Must Conglomerate Corporation disclose the statements taken by its attorney after the accident? [pick the best answer]

The attorney’s report to the CEO would remain privileged notwithstanding that CEO shared it with the purchasing manager.

MPRE

An attorney represented Conglomerate Corporation, and she made a confidential report to Conglomerate’s CEO, describing Conglomerate’s contractual relationship with Supplier Systems, a large vendor. The attorney advised the CEO that Conglomerate could terminate its contract with Supplier without facing any liability. The CEO then sent a confidential memorandum to Conglomerate’s purchasing manager, explaining the parts of the attorney’s advice necessary for understanding the issue at hand, and asking whether termination of the contract would nonetheless be inappropriate for business reasons. Months later, Conglomerate finds itself in litigation over a related matter, and the opposing party seeks discovery of what the attorney reported to the Conglomerate CEO regarding Supplier’s contract. Conglomerate asserts attorneyclient privilege for the report and its contents, but opposing counsel responds that Conglomerate waived privilege by sharing crucial aspects of the report with the purchasing manager, while asking for a business judgment. How is the court likely to rule?

No, the officer cannot assert privilege because he was not a client of the attorney in the representation.

MPRE

An attorney represented Conglomerate Corporation. An officer of Conglomerate Corporation communicated in confidence with the attorney about deals between Conglomerate and one of its creditors, Big Bank. Conglomerate later declared bankruptcy, and the court appointed a in bankruptcy for Conglomerate. Then the attorney became a necessary witness in the litigation between Big Bank and Conglomerate’s bankruptcy trustee. Conglomerate’s trustee in bankruptcy waived privilege on behalf of Conglomerate with respect to testimony by the attorney regarding statements by the officer to the attorney. The officer, knowing that the statements would embarrass or even incriminate him, tried to prevent the attorney from testifying, claiming the conversation was a privileged communication to the corporation’s attorney. Big Bank’s lawyer responded that former officers and directors of a corporation cannot claim privilege after control of the corporation has passed to a bankruptcy trustee. Should the court side with the officer in this situation?

Yes, the crime-fraud exception renders nonprivileged the communications between the client and the attorney, including identification of the client’s confederates.

MPRE

An attorney’s client was a member of a drug cartel that imported and distributed illegal narcotics. The client promised the other cartel members that the client would provide anyone in the cartel with legal representation whenever the need arose. The client then offered the attorney a generous monthly retainer if the attorney would stand ready to provide legal services whenever the client or the cartel associates encountered legal difficulties during the operation of the cartel. In a confidential communication that would normally otherwise qualify as privileged, the client told the attorney the identities of the other cartel members. The client continued the cartel operations for some time after this communication. Would government lawyers, in a subsequent law enforcement action, be able to compel the attorney to disclose the identities of the other cartel members?

Yes, privilege covers the confidential communications between the attorney and the client regarding the indictment for theft and possession.

MPRE

A client consults an attorney about the client’s indictment for the crimes of theft and unlawful possession of stolen goods. Applicable law treats possession of stolen goods as a continuing offense. The client is still hiding the stolen items in a secret place. The prosecutor then tries to subpoena the attorney to testify about the conversations with the client regarding the charges and the legal proceedings. Would attorney-client privilege apply to the conversation, if the client’s crime is still ongoing?

No, the crime-fraud exception defeats attorneyclient privilege for this conversation, as the crime is still ongoing.

MPRE

A client consults an attorney about the client’s indictment for the crimes of theft and unlawful possession of stolen goods. Applicable law treats possession of stolen goods as a continuing offense. The client is still hiding the stolen items in a secret place, and the client asks the attorney about in which client can continue to hold onto the stolen goods. During the conversation, the client describes the present location of the stolen items. The prosecutor then tries to subpoena the attorney to testify about the location of the stolen goods. Would attorney-client privilege apply to the conversation, if the client’s crime is still ongoing?

Yes, confidential communications about ways in which Client might lawfully return the stolen goods to their owner are privileged.

MPRE

A client consults an attorney about the client’s indictment for the crimes of theft and unlawful possession of stolen goods. Applicable law treats possession of stolen goods as a continuing offense. The client is still hiding the stolen items in a secret place, and the client asks the attorney about how the client might lawfully return the stolen items. The prosecutor then tries to subpoena the attorney to testify about conversation. Would attorney-client privilege apply to the conversation, if the client’s crime is still ongoing?

The fiduciary exception to the attorney-client privilege does not apply to the general trust relationship between the United States and the Indian tribes.

MPRE

A federally-recognized tribe of Native Americans, the Jicarilla Apache Nation, brought an action against the Department of the Interior for mismanagement of tribal trust funds, in violation of federal statutes. During discovery, the plaintiffs requested production of certain government documents, but the government had a plausible claim that the documents in question came under the protection of attorney-client privilege. The plaintiffs countered that the fiduciary exception to privilege applied in this case because of the trust relationship between the United States government and the Native American tribes. How should the court rule?

anticipation of litigation applies to almost any legal work performed for a client, because litigation could eventually arise over any contract, will, or property disposition

MPRE

Which of the following is NOT one of the elements of the work product doctrine?

Both the lawyer's memorandum analyzing the contract form and the lawyer's debriefing memorandum were prepared in anticipation of litigation, because a grand jury proceeding is itself litigation.

MPRE

Prosecutors from the Department of Justice (DOJ) began an antitrust investigation into Conglomerate Corporation, and the DOJ began questioning some of Conglomerate's business customers. Conglomerate’s attorney prepared a memorandum analyzing the antitrust implications of Conglomerate's standard contract form with commercial purchasers. Soon thereafter, some Conglomerate employees received subpoenas to testify before a grand jury that was investigating the same antitrust issues in their industry. The attorney worried that the grand jury would indict Conglomerate, so she interviewed the employees herself and prepared a debriefing memorandum. Would the attorney’s two memoranda described above come under the protection of the work product doctrine?

Yes, this situation falls under the need-andhardship exception to the work product doctrine.

MPRE

The law school casebook industry was heavily consolidated. Several witnesses testified before a grand jury investigating this specialized publishing industry. Shortly afterward, an attorney for East Publishing Company debriefed the witnesses and wrote memoranda of those interviews in anticipation of the potential indictment of East Publishing, and the anticipated civil suits that could follow. Five years later, some plaintiffs representing a class of law school casebook consumers filed an antitrust class action against East Publishing and sought discovery of the non-opinion work-product portions of the attorney’s debriefing memoranda. The plaintiffs were careful in preparing their case and gathering evidence through other means, and they can show that the witnesses in question were no longer able to remember some of the events to which they testified at the previous grand jury proceeding. Should a court order the attorney to produce the memorandum?

No, when the attorney chose to ask the teller questions with direct reference to the memorandum, it waived work-product immunity for the portion of the memorandum discussing the teller's story, and any other parts of the document that are necessary to place all the testimony fairly into context.

MPRE

A defendant accused of bank robbery hired an attorney. The attorney interviewed a bank teller, who witnessed the robbery. The attorney memorialized the conversation in a written memorandum that qualified as work product. Later, during the trial, the same teller testified for the prosecution, and the attorney cross-examined the bank teller by quoting from the teller's prior statement, as memorialized in the memorandum. The bank teller then denied making the statements. In turn, the prosecutor demanded a copy of the document from which the attorney had read statements during the cross-examination, and the attorney objected that the document was attorney work product and therefore not subject to discovery. Is the attorney correct?

Both Giant Company and the DOJ (government) may properly assert Giant’s work-product protection for the documents, under the common-interest doctrine.

MPRE

The DOJ brought an antitrust suit against Conglomerate Corporation. Giant Company separately sued Conglomerate, mostly alleging the same facts that the DOJ had alleged in its case, and Giant sought parallel relief. An attorney for Giant Company showed the DOJ lawyers some documents that constituted part of the attorney’s work product in Gian Company’s parallel lawsuit against Conglomerate. Giant Company and the DOJ formally agreed that the DOJ would use documents only in litigation against Conglomerate Corporation. Later, however, in the government's case, Conglomerate Corporation sought discovery of Giant Company’s work product, that is, the documents that Giant’s attorney had shared with the DOJ. How should the court rule on this discovery request?

No, because the attorney prepared the witness statements on behalf of the plaintiff in anticipation of the litigation.

MPRE

An attorney had many years of experience in handling personal injury litigation, and in a certain case, the attorney represented a plaintiff in litigation over injuries sustained in a car accident. In preparation for trial, the attorney interviewed each of the eyewitnesses of the accident, and afterward wrote a memorandum summarizing what each witness said. The witnesses themselves agreed to swear and sign the statements, as if they were affidavits. The statements contained no mental impressions of the attorney, only facts communicated by the witnesses. Opposing counsel eventually learned of these interviews and sought discovery of the witness statements that the plaintiff’s attorney had drafted. Unsurprisingly, the attorney objected that these documents were attorney work-product doctrine. Should the court compel the production of the witness statements?

The court should deny the motion because the photos depict a completely different staircase than the one that caused the accident, so they are no more helpful than photos the plaintiff could take now.

MPRE

An attorney agreed to represent a plaintiff who sustained serious injuries three months earlier when she fell through a defective staircase on the defendant’s premises. Her hospitalization after the incident prevented the plaintiff from securing legal representation for twelve weeks. The attorney filed a personal injury lawsuit immediately, and the defendant retained counsel for the litigation in response. The defendant’s lawyer visited the accident scene immediately and took photographs. By that time, the defendant had completely rebuilt the staircase, adding additional handrails, bannisters, and other safeguards. Later, as the litigation proceeded through the discovery phase, the plaintiff’s attorney sought production of defense counsel’s photographs of the scene, and defense counsel objected that the photographs were non-discoverable attorney work product. The attorney for the plaintiff explained in a motion to the court that the lapse of time since the accident prevented the attorney from viewing the accident scene as it was at the time, invoking the need-and-hardship doctrine. Moreover, the plaintiff’s delay in securing counsel was due to her injuries and hospitalization, which were not her fault. How should the court rule?

The court should deny discovery because the work product doctrine protects the information from disclosure.

MPRE

An attorney represented a client in litigation. During the discovery phase of the matter, the opposing party sought to discover communications from a meeting that the attorney had previously organized to prepare for the case. The attorney, an accountant, certain interested creditors, and the bankruptcy liquidation committee members had all attended the meeting, as well as a few others. The attorney resisted discovery based on the work product doctrine. The opposing party countered that the presence of other parties besides the attorney, the client, and their necessary agents waived the privilege. How should the court rule?

The court should compel production of the photographs because there is no other way for the plaintiff to establish the condition of the staircase at the time of the accident.

MPRE

An attorney agreed to represent a plaintiff who sustained serious injuries three months earlier when she fell through a defective staircase on the defendant’s premises. Her hospitalization after the incident prevented the plaintiff from securing legal representation for twelve weeks. The attorney filed a personal injury lawsuit immediately, and the defendant retained counsel for the litigation in response. The defendant’s lawyer, however, had visited the accident scene immediately after the accident and took photographs. Two weeks later, the defendant completely rebuilt the staircase, adding additional handrails, bannisters, and other safeguards. Later, as the litigation proceeded through the discovery phase, the plaintiff’s attorney sought production of defense counsel’s photographs of the scene, and defense counsel objected that the photographs were non-discoverable attorney work product. The attorney for the plaintiff explained in a motion to the court that the lapse of time since the accident prevented the attorney from viewing the accident scene as it was at the time, invoking the need-and-hardship doctrine. Moreover, the plaintiff’s delay in securing counsel was due to her injuries and hospitalization, which were not her fault. How should the court rule?

The attorney’s notes would come under the protection of the attorney’s duty of confidentiality but not the work product doctrine.

MPRE

An attorney had a series of private meetings with a client about incorporating the client’s new business venture as an LLC. The attorney kept careful notes of these discussions. Which of the following is true regarding these notes about the conversations between the attorney and the client?

The need and hardship exception.

MPRE

An attorney had a series of private meetings with a client about the subject matter of the representation. The attorney kept careful notes of these discussions, along with the attorney’s reflections and concerns. Sometime later, an opposing party in litigation moved to compel production of these notes. Which of the following is most likely to be a reason that the attorney would assert attorney-client privilege for these notes, rather than claim they are attorney work product?

The client’s friend had been present during the conversations.

MPRE

An attorney had a series of private meetings with a client about the subject matter of the representation. The attorney kept careful notes of these discussions. Sometime later, an opposing party in litigation moved to compel production of these notes. Which of the following is most likely to be a reason that the attorney would try claiming that they are attorney work product, rather than asserting attorney-client privilege for these notes?

The representation pertained to an employee manual that the attorney was drafting for the client’s business.

MPRE

An attorney had a series of private meetings with a client about the subject matter of the representation. The attorney kept careful notes of these discussions, along with some of the attorney’sreflections and ideas. Sometime later, an opposing party in litigation moved to compel production of these notes. Which of the following is most likely to be a reason that the attorney would assert attorney-client privilege for these notes, rather than claim they are attorney work product?

A client who has a history of being extraordinarily litigious

MPRE

For purposes of attorney work product protection, which of the following is NOT likely to create an objectively and subjectively reasonable “anticipation” of litigation:

No, lawyers having comparable managerial authority in a government agency must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the agency or department conform to the Rules of Professional Conduct.

MPRE

An attorney served as the director of the Environmental Enforcement Division of the state Attorney General’s office, which brought legal actions against polluters in the state. The Attorney General’s Office hired only lawyers with three years’ experience or more – they never hired new law school graduates. In the Environmental Enforcement Division, all the lawyers had many years of experience as litigators in that field. The attorney who served as director oversaw the prioritization of cases and implementation of the Attorney General’s policy objectives, and assigned cases to the lawyers in her Division, but did not need to monitor their work, train them in legal ethics, or watch for ethical violations, because all the lawyers were competent and experienced. It turned out, however, that one of the lawyers committed some ethical violations, such as testifying as the key witness in a trial in which he was the attorney of record for the state, which was the plaintiff or prosecuting party in the cases. In another instance, the lawyer brought an enforcement action that had no factual basis in retaliation against an entity that had defrauded the lawyer of a substantial amount of money. When these violations received attention in a local new station expose, the lawyer resigned in disgrace, and the Attorney General took the position that the director of the Environmental Enforcement Division is not responsible for the actions of this individual lawyer, whom he described as a “bad apple” in the Division. Is he correct?

Yes, partners and others in a supervisory role at a firm are responsible to monitor the workload of their subordinate attorneys.

MPRE

An associate worked at Big Firm. Even though she had only recently graduated from law school, the associate had earned the respect of the partners at the firm, and she was involved in several projects for multiple lawyers and clients. Overwhelmed with looming deadlines on multiple matters, she realized that she could not devote enough attention to each client's issues - she could not provide competent, diligent representation to so many clients at once. She approached the partner who was her mentor at the firm and explained her concerns, and he responded that she was just experiencing a learning curve, and that her workload was in fact normal, and that she should stop complaining. A few weeks later, the associate was conducting research on a client matter, and she overlooked an important case related to her issue, despite her conscientious work ethic. At the time, she was racing against deadlines on two other projects, was working long hours, and was sleeping only five hours a night on average. Big Firm has a managing partner and a committee of senior partners. Could the partner who was her mentor be subject to disciplinary action for the associate's mistake?

Yes, the supervising attorney had a duty to take affirmative steps to correct the misapprehension of the other party, sometime before the consummation of the purchase.

MPRE

A certain attorney worked at Big Firm, and she was supervising a new associate lawyer there. During a negotiation for the sale of a company, in which Big Firm represented the seller, the associate informed the buyer’s lawyers that certain assets of the company had no liens or other encumbrances on them, and that she had verified this herself. This was a misrepresentation – the properties had significant encumbrances, which the purchase price should have reflected, but it did not. The supervising attorney, who was part of the conversation when the associate made the misrepresentation, did not correct her, because she did not want to humiliate her in front of the opposing party, or reveal an internal discord among Big Firm’s lawyers. Instead, the supervising attorney lectured the associate about the misrepresentation privately the next day, and he told her not to let it happen again. Then they agreed to drop the matter, and the supervising attorney instructed the associate to watch for a good opportunity to bring up the mistake and clarify the matter for the buyer. The associate never did so. Could the supervising attorney be subject to discipline for failing to correct the resulting misapprehension by the buyer?

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

MPRE

An attorney had supervisory responsibilities for a new lawyer at her firm, but she had her own cases and clients to handle. It was a busy season for the firm, so the attorney did not check on the associate herself, but she would take time to answer questions if the associate approached her. The associate needed more oversight and direction that she received, and she committed several serious ethical violations. The supervising attorney had no way of knowing about these because the associate was always careful to cover up her mistakes or blame others when something went wrong. Could the supervising attorney avoid responsibility for the associate’s ethical violations even if she did not direct, ratify, or have knowledge of the associate’s misdeeds?

No, because a series of reversed convictions over Brady violations from the same office indicates a lack of training or supervision regarding the ethical duties of prosecutors.

MPRE

An attorney was the District Attorney for a local prosecutor’s office, and she had several subordinate lawyers working under her authority and oversight. This office had a series of appeals from defendants they prosecuted, and in several cases, the appellate courts reversed the convictions over Brady violations, that is, withholding exculpatory material evidence from defense counsel. Is the District Attorney immune to discipline for these violations?

Yes, even if a lawyer is not a partner or other general manager, she directly supervises the work of the other lawyer as lead prosecutor in this proceeding.

MPRE

An attorney worked as an entry-level prosecutor. She did not have a supervisory position or title in her office hierarchy, but merely worked on her assigned cases under the direction and oversight of the higher-ranked lawyers in the office. On one occasion, however, a case arose involving an issue that was important to her, so she asked to be the lead prosecutor on this one case. The District Attorney agreed, and assigned one other lawyer in the office, who was also an entry-level prosecutor, to assist her on the matter. The case had two defendants, and at one point, the attorney leading the prosecution was in one room negotiating a plea arrangement with the first defendant, and the lawyer assisting her was negotiating with the other defendant at the same time in the next room. The state’s main witness against the two defendants was a third co-conspirator who had become an informant in exchange for a favorable plea that involved no jail time. The lawyer assisting in the case lied to the second defendant and denied that the state’s witness had agreed to a deal. The lawyer had told the lead attorney on the case that he planned to do this beforehand, and she informed him that this would be unethical, but she did not try to stop him from doing so, because she was not his boss. After the negotiations, they met to debrief, and he informed her that he had indeed lied to the defendant and defense counsel about the state’s arrangement with their main witness in the case. She reminded him that this violated the ethical rules, but she took no further action, because she was only an entry-level prosecutor, at the same rank as the lawyer assisting on the case. Could the attorney, as lead prosecutor on the case, be subject for the ethical violations in this case?

No, the attorney had a duty to research the issue himself and would have discovered that the fees were clearly illegal and unreasonable.

MPRE

An insurance company routinely hired outside counsel to represent its policyholders in litigation under liability policy. An inexperienced attorney worked for the firm. The firm’s partners charged the policyholders fees for the representation even though the insurer was already paying their legal fees; this and other aspects of their fee arrangements violated state insurance laws, as well as the ethical rules about reasonable fees. The inexperienced acted as the partners directed him to do and charged clients these fees that were illegal and unreasonable, but at one point he raised concerns about the practice with one of the partners. The partner said he would check into it. Would the safe harbor provision of Model Rule 5.2(b) absolve the attorney of a duty to research the fee issue?

Yes, regardless of the directions the attorney received from the partner at Big Firm or from the client, he is subject to discipline for failing to disclose a material fact to a tribunal when disclosure was necessary to avoid assisting a criminal or fraudulent act by a client.

MPRE

An attorney had recently graduated from law school and entered the practice of law. After a federal clerkship, he went to work for Big Firm, which paid the highest associates’ salaries in the state. A partner at Big Firm gave the attorney an assignment to represent the teenage daughter of one Big Firm’s most important clients, a billionaire social media entrepreneur. The daughter had been part of a group of student protesters that the police had arrested the previous week for trespassing. When arrested, the daughter had given the police a friend’s driver’s license and identified herself as the friend, who had a similar appearance. The police mistakenly charged the daughter under the friend’s name, and the district attorney proceeded to prosecute her under the mistaken identity. The friend, whose name and driver’s license the daughter had used, was unaware that she was the named defendant in a misdemeanor criminal case, and the billionaire’s daughter, who was now the attorney’s client, continued with the ruse even as she remained in custody along with the other protestors. During a private consultation with her, the attorney asked about the name discrepancy, as he was expecting to represent the daughter of Big Firm’s client, and the girl explained the false identification, and insisted that the attorney not disclose her real identity to the police or the court. Back at the firm’s office, the attorney approached the partner who had assigned the case, but before the attorney could finish explaining the name problem, the partner said, “Do not mess this up, her father is an important client of the firm. Convince the court to drop the charges as quickly as possible. Close this matter quickly.” The attorney spoke to the prosecutor and convinced her to dismiss the case, but the attorney never told her about the misidentification of his client. After the dismissal of the case, the attorney met with the billionaire’s daughter and her mother, together with the friend whose name she had used and the friend’s parents, who were upset that their daughter had been a named defendant in the matter in the first place. Despite the attorney’s efforts to reassure the friend’s parents that the state dropped the charges, the friend’s parents contacted the prosecutor’s office in hopes of removing the arrest from their daughter’s record. When the prosecutor realized what had transpired, he reported the attorney to the state bar disciplinary authorities. Could the attorney, as an inexperienced new associate at Big Firm, be subject to discipline for this matter?

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

MPRE

An attorney works exclusively as a contract lawyer for other firms that need extra help for big cases, whether in pre-trial document review or in background research and writing of briefs. She has no direct contact with the clients of these firms, and she does not participate in important decisions about any of the matters for which she performs legal tasks. Can the attorney avoid being be subject to discipline if a firm uses her contract work in a way that constitutes misconduct, either regarding clients or before a tribunal, assuming she either knows or could have known about the misconduct?

Yes, regardless of the directions of her superiors or her inexperience, she had a duty not to bring a frivolous proceeding or assert a frivolous issue in litigation.

MPRE

An attorney who had only recently graduated from law school, and she received a job offer from a newly-elected County Attorney, after volunteering for his campaign. The new attorney did not directly handle cases but assisted trial lawyers with clerical work and non-legal tasks, such as creating public service announcements for websites, social media, and press interviews. The County Attorney soon began a series of highly-publicized attacks, including lawsuits and investigations, against political rivals on the County Board and County Courts. At one point, the County Attorney decided to file a federal civil racketeering lawsuit against several of the County Board members. There was no factual support for the allegations. When all the other lawyers in the office refused to be involved in the matter, the County Attorney assigned the case to the new attorney, who had no trial experience, and who was completely unfamiliar with the racketeering statute or case law. She took the case enthusiastically because she was eager to prove herself to the County Attorney; she even tried to amend the complaint to add additional racketeering charges, which were merely duplicative of the existing frivolous charges. She also filed several preemptive pre-trial motions seeking to qualify her expert witnesses and suppress evidence the defendants might try to submit. The court denied the motion to amend the complaint and dismissed the original complaint for having no basis in fact or law. The judge took the additional step of filing a grievance with the state bar against the attorney. In her hearing before the disciplinary committee, the attorney claimed that she was too inexperienced to know that the racketeering charges in her case had no basis in fact or law, and that she merely deferred to the guidance and instructions of the County Attorney. Could she be subject to discipline despite these mitigating factors?

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

MPRE

An attorney works for a mid-size law firm that employs two or three law students every year as summer associates. The manager of the student associates assigns one of them to work on the attorney’s pending antitrust case, in addition to assignments for other lawyers at the firm. While researching a central issue in the case, the summer associate discovered an older Supreme Court decision that was unfavorable to their client. The summer associate decided not to tell anyone about the case, as the opposing party seemed to have overlooked it in their briefs. The attorney was not aware of any of this until they were on a break during their hearing. The hearing was going well for their side, and the associate boasted to the attorney about “burying” that Supreme Court case he had found. The attorney said, “Well, you should have told me about it at the time, but there is no point in bringing it up now, as it appears opposing counsel overlooked it and the hearing is going our way.” The judge’s clerks, however, found the case, and the judge queried the lawyers about how they could have missed it. Opposing counsel admitted he had been negligent in doing legal research on the matter, and the attorney recounted the story about the summer associate hiding the case from him. Is the attorney now subject to discipline for what the summer associate did?

Yes, because he was negligent in the hiring and supervision of nonlawyer employees.

MPRE

An attorney hired Receptionist because of her good looks and because her brother was in the attorney’s college fraternity, but he did not check into her background at all or ask for references. Receptionist had access to all files, records, and accounts in the firm, and three months later, there arose a problem with funds missing from client trust accounts. Circumstantial evidence pointed to Receptionist as the culprit, and at this point the attorney learns that Receptionist has an arrest record for theft and embezzlement on several occasions in the past. The attorney lectures Receptionist about it but allows her to keep her job because nobody can prove her guilty - the firm does not keep the type of records that would enable anyone to prove where the missing funds went. When additional complaints arise over misappropriated client trust funds, would the attorney be subject to discipline?

No, because the attorney is not a partner nor in a comparable managerial position to implement such measures, nor does it appear that the paralegal was under the attorney’s direct supervision

MPRE

A certain attorney is a fifth-year associate at a large national law firm. As a senior associate, the attorney can attend business meetings of the firm, but cannot vote on any decisions. The attorney is aware that the firm has no measures in effect that would give reasonable assurance that the paralegals are observing the confidentiality and conflict of interest rules that are part of the professional obligations of lawyers. The attorney mistakenly believes, however, that the rules apply only to the lawyers in the firm, not to the clerical staff of paralegals. When a paralegal in a separate practice group from the attorney violates the rules and the state disciplinary authority investigates the firm’s ethical compliance measures, will the attorney be subject to discipline?

Yes, because the attorney did not make reasonable efforts to ensure that the legal assistant’s conduct was compatible with the professional obligations of a lawyer.

MPRE

An attorney employs an experienced legal assistant to manage administrative matters in the firm, including the client trust accounts. The attorney provided the legal assistant with detailed instructions about client trust accounts, including the specific kinds of records to keep, what funds to deposit there, and under what circumstances to withdraw funds. The attorney also sent the legal assistant to attend CLE courses and workshops on IOLTA accounts and managing firm records. Due to the legal assistant’s thorough training, competence, and experience, the attorney reviewed the client account books cursorily once a year during the annual review of the employee. Eventually, an audit by the state disciplinary authority revealed numerous discrepancies in the bookkeeping regarding the IOLTA accounts and some prohibited commingling of client funds with the firm’s funds. The attorney had no actual knowledge of the discrepancies or problems regarding the client trust accounts. Is the attorney subject to discipline?

$727,500, for the attorney’s share of the firm's assets, his of uncollected fees, and the death benefit

MPRE

An attorney was part of a partnership before he died. He left his nephew as his sole heir. The partnership agreement, as written, provides that the firm should pay the certain amounts to the nephew. Those amounts are $210,000, for the attorney’s share of the firm's assets; a $500,000 death benefit, provided for all shareholders in the partnership; and $17,500 for fees that the attorney earned on recent cases, but had not yet received. Under the Model Rules, which of the following represents the most that the firm may properly pay to the decedent's nephew?

No, the arrangement constitutes an improper sharing of fees with a nonlawyer.

MPRE

Attorney Barrett was the managing partner at a small law firm. Barrett hired Cooper, an ordained minister who had been unemployed, as a legal assistant at the firm. Cooper’s main job at the firm, however, was to bring in new clients. Cooper received a minimum-wage base salary, but also received large bonuses for bringing in clients who generated fees for the firm, and the combined bonuses each year exceeded $100,000. The firm paid for Cooper to complete a certification course to become a hospital chaplain, which gave Cooper chaplain’s access to emergency areas of hospitals to visit accident victims and their families. He would offer to pray with them, but he would also give them a business card from Barrett’s firm. In this way, Cooper brought several high-payoff personal injury clients to the firm. Cooper also recruited clients from the local church where he served as a “biblical counselor.” Is it proper for the firm to pay Cooper bonuses for bringing fee-generating clients to the firm?

It is proper for Big Firm to pay the placement fee to the agency, to pass the fees through to the clients, and to pay the attorney’s hourly rate out of the fees it receives from clients.

MPRE

An attorney could not find a full-time job after law school, so instead he works on a contract basis for other firms. The attorney also signs up with a legal temp-work agency, a company owned by nonlawyers that places lawyers in temporary assignments at law firms that need an extra associate on a short-term basis. Law firms contact the legal temp-work agency when they need lawyers for a special project or assignment, and the agency sends them several resumes from which to choose the temporary associates they want. Through this temp-work agency, the attorney receives a three-month assignment at Big Firm conducting document review as part of litigation discovery. The firm pays the attorney $75 per hour, and it pays the temp-work agency a placement fee of 7% on whatever the attorney earns. Big Firm, in turn, passes the attorney’s $100/hour fees and the 7% placement fee through to its clients as an item on the client’s bill. Is this arrangement proper?

Yes, because it is the payment of money over a reasonable period after the lawyer’s death to a specified person.

MPRE

After a long, distinguished career as a solo practitioner in a major city, an elderly attorney agrees to join a newer law firm on the condition that the firm would pay $1000 per month after the attorney’s death to his sister, who is 74 years old, until her death. The attorney’s sister is not a lawyer. The firm agrees to this arrangement, in addition to making the attorney a partner with a 15% share in the firm. Is this arrangement proper?

No, because an attorney purchasing the firm of a deceased lawyer may pay the executor the agreed-upon purchase price.

MPRE

An attorney agrees to buy the successful law firm of a fellow lawyer who recently succumbed to terminal cancer. The sale includes the office building, the library and furnishings, and the good will of the firm, and conforms to the provisions of Rule 1.17. The purchasing attorney pays $100,000, the agreed-upon purchase price, to the executor of the deceased lawyer’s estate, but the executor is not a lawyer. The funds for the purchase came from the contingent fees in a recent personal injury case won by the purchasing attorney. Was this transaction improper?

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

MPRE

Three law partners have decided to incorporate their firm instead of continuing as a partnership, as their malpractice insurer has offered them a lower rate on their premiums if they incorporate and thereby reduce some of their joint liability. They also want to make a clearer track for associates to become shareholders after reaching certain performance benchmarks. The articles of incorporation provide that when a shareholder dies, a fiduciary representative of the estate may hold stock in the corporation for a reasonable time during administration of the estate before transferring it to the heirs. Which of the following may the partners properly do as they incorporate?

Yes, because a lawyer may share court-awarded legal fees with a nonprofit organization that retains the lawyer in a matter.

MPRE

A church retains an attorney to challenge a new zoning regulation that would prohibit the church from constructing a new, expanded sanctuary on its property, attached to the existing church. The church cannot afford to pay the attorney, and it is seeking only a declaratory judgment (that the regulation is invalid) rather than money damages. The attorney agrees to take the case and then split any courtawarded legal fees with the church if they prevail. They win a favorable judgment; the court declares the regulation unconstitutional and awards legal fees, which the attorney shares with the church. Is the fee sharing proper?

The attorney could be subject to discipline for the unauthorized practice of law in this southern state.

MPRE

An attorney is a licensed lawyer in a New England state, but has an office and represents clients exclusively in a southern state. The attorney confines her practice to immigration law, representing foreign-born clients in immigration hearings. A relevant federal statute permits nonlawyers to appear as representatives for immigrants when they appear before the immigration agency. Many of the attorney’s clients have applied for a spousal visa after marrying an American citizen, and some clients had a Notary Public from their home country or an unordained lay minister from their home church conduct their wedding ceremony. In addition, some were previously married and divorced in their home country, where such transactions are informal and have no official documentation. There is often some question about whether the marriage is valid under local state law, which is a prerequisite for obtaining certain types of visas. Which of the following is correct?

No, because the letterhead reveals that the wife is aiding her husband in the unauthorized practice of law.

MPRE

A husband and wife are both attorneys in Puerto Rico, though they attended law school in Florida. They have practiced in Puerto Rico for ten years and have a license to practice there. Last year, they moved to Florida, where the wife took the state bar exam and gained admission to the Florida bar. They have now opened a law office in Florida with both of their names listed on the firm letterhead, followed by the phrase “Attorneys at Law.” The husband confines his practice exclusively to Puerto Rican clients who are living in Florida or are visiting there; the wife handles all other legal matters. It is proper for them to use such letterhead?

Both the attorney and her supervising lawyer are subject to discipline because she is on inactive status in her home state but is soliciting clients and handling their matters there regularly.

MPRE

An attorney obtained a license to practice law in the state where she attended law school. After a few years, the attorney took a job in a neighboring state, moved there, and obtained a license to practice law in her new state. She kept her original license, in her former state, but went on inactive status there to avoid the burdensome annual bar membership fees in a state where she no longer practiced. Eventually, her new firm loses its anchor clients and recommends that the attorney drum up some new business among her former clients. Then the attorney sends letters to all her former clients in her former state, offering to represent them in any new legal matters they have, or in updating wills or contracts that she previously did for them. She travels about once per week to her home state and meets with clients in a library study room at the law school she attended. A few of her former clients refer her to friends or relatives who become new clients, and the attorney’s new employer is thrilled. Which of the following is true?

It was improper for the attorney to fail to disclose to the client that he was unlicensed in the other state and would need to file a pro hac vice appearance, especially given that the matter required some knowledge of local laws.

MPRE

A client retains his attorney, who has represented the client in the past, to represent him in litigation in another state, where the attorney is unlicensed. The matter requires some knowledge of the law of the state where the trial will occur. His attorney files a pro hac vice appearance in the matter, which the local court accepts, and begins preparing for trial there. The attorney and the client never discuss the particulars of filing a pro hac vice appearance; nor did they discuss why it would be necessary. The client never asked if the attorney could practice law in the other jurisdiction, and the attorney never explained the licensing requirement and that he would need permission from the court there to handle the case. Then the attorney prevailed in the matter on behalf of the client, kept his agreed-upon contingent fee, and gave the client the remaining proceeds and unused retainer funds. Which of the following is true?

Yes, because the attorney is merely facilitating the collection agency in the unauthorized practice of law.

MPRE

An attorney is a joint-owner of a collection agency. Whenever the agency’s initial efforts to collect prove unsuccessful, the staff at the agency sends the delinquent debtor a demand letter on the attorney’s law firm letterhead, threatening to commence litigation if the matter does not reach a resolution within 30 days. The attorney authorized the staff at the agency to send these demand letters, but the attorney is too busy to review all the letters himself. The collection agency staff signs the letters on behalf of the attorney’s firm. Will the attorney be subject to discipline for authorizing these letters?

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

MPRE

An attorney hired a second-year law student as a clerk. The law student is unlicensed. The attorney has the law student perform a variety of tasks. Which of the following tasks, if performed by the law student, would mean that the attorney is subject to discipline?

Yes, the clients are coming to the attorney in her office in the state where she has a license to practice law.

MPRE

An experienced attorney has an office in State X, and she is duly licensed to practice law in that state. The attorney’s office is in a city on the border of State Y, and the attorney does not have a license to practice there. Over the years, some of the attorney’s clients have in fact been residents of State Y, and their legal issues sometimes involve research into the laws or judicial precedents of State Y. For the convenience of these clients, and to attract business of other clients there, the attorney rents a small office space, hires nonlawyer clerical staff, and otherwise prepares premises for the general practice of law at a branch-office location in State Y. Apart from the issues raised by opening the new branch office, was it improper for the attorney to represent residents of State Y in her office in State X?

It is impermissible because she does not have a license to practice in State Y and she has established an office or other systematic and continuous presence in this jurisdiction for the practice of law.

MPRE

An experienced attorney has an office in State X, and she is duly licensed to practice law in that state. The attorney’s office is in a city on the border of State Y, and the attorney does not have a license to practice there. Over the years, some of the attorney’s clients have in fact been residents of State Y, and their legal issues sometimes involve research into the laws or judicial precedents of State Y. For the convenience of these clients, and to attract business of other clients there, the attorney rents a small office space, hires nonlawyer clerical staff, and otherwise prepares premises for the general practice of law at a branch-office location in State Y. Is it permissible for the attorney to open the branch office in State Y?

It is permissible because the legal issues arise out of or relate closely to the attorney’s practice in a jurisdiction in which the lawyer is admitted to practice.

MPRE

An experienced attorney has an office in State X, and she is duly licensed to practice law in that state. The attorney’s office is in a city on the border of State Y, and the attorney does not have a license to practice there. The attorney represents a regulated utility, which operates a power plant in State X near the border with State Y. The attorney’s representation of the utility mostly pertains to environmental issues, obtaining necessary permits, and complying with federal and state regulations of utilities. Occasionally, the utility also has issues relating to compliance with the environmental and permitting laws of State Y because of those same activities. Is it permissible for the attorney to travel to State Y to deal with governmental officials regarding regulatory issues arising out of the utility's activities?

It is permissible because the legal issues arise out of or relate to the attorney’s practice in a jurisdiction in which the lawyer has a license to practice.

MPRE

An experienced attorney has an office in State X, and she is duly licensed to practice law in that state. The attorney’s office is in a city on the border of State Y, and the attorney does not have a license to practice there. The attorney represents a regulated utility, which operates a power plant in State X near the border with State Y. The attorney’s original work for the utility in State X related to rate-setting proceedings before a utility commission in that state, and before the Federal Energy Regulatory Commission (FERC). New legislative changes now permit the utility to make retail sales of electricity to consumers in multiple states. Given the attorney’s extensive knowledge of the utility's rate-related financial information, the utility asks the attorney to handle its new rate applications in several other states, but in none of these states does the attorney have a license to practice law. The attorney’s work in those matters would frequently require her presence for legal activities in each of the other states until the new rate work is complete. Is it permissible for the attorney to conduct those activities in the other states on behalf of the utility?

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

MPRE

An attorney wants to retire from practice due to a chronic illness, and he decides to sell his practice to another lawyer. The sale agreement complies with the Model Rules regarding the sale of a law practice. As part of the sale agreement, however, the attorney stipulates that he will not resume the practice of law in that jurisdiction, even if medical breakthroughs cure his chronic illness and restore him to perfect health. The purchaser of the firm is aware that research for a cure of the attorney’s illness is well underway, and he is concerned because it is foreseeable that the attorney would recover and want to return to the practice of law in a few years. Is it proper for the attorney and his buyer to include this provision of the sales agreement for the law firm?

Yes, because the rule against restrictions on the right to practice have an exception for agreements concerning benefits upon retirement.

MPRE

An attorney agrees to join a new firm as one of its shareholders, and to merge his practice with that of the new firm. The shareholder agreement includes a provision that if the attorney retires from the firm and begins collecting the firm’s retirement benefits, he cannot practice law with another firm, government entity, or as a solo practitioner. Otherwise, the agreement stipulates, the attorney will forfeit the retirement benefits. The firm is concerned that the attorney will want to represent clients occasionally in his retirement, and that he may steal some clients from the firm. Is this agreement proper?

Yes, because the attorney has entered into an employment agreement that restricts his right to represent future clients who sue Big Bank or whom Big Bank sues.

MPRE

Big Bank hires outside counsel to handle its mortgage foreclosure cases against borrowers who are in default. An attorney agrees to handle a matter for Big Bank, but the engagement contract between the attorney and Big Bank specifies that the attorney may not represent clients in the future who have adversarial claims against Big Bank, and that the attorney agrees to disqualification in any case in which Big Bank would be the opposing party in litigation. The attorney recognized that this term would be unenforceable in court, and he accepted the appointment as outside counsel. Were the attorney’s actions improper, under the Model Rules of Professional Conduct?

No, because an attorney must not make an agreement restricting the attorney’s right to practice.

MPRE

An attorney specializes in helping his business clients obtain business loans from commercial lenders. While assisting one client in obtaining an unusually large commercial loan from Big Bank, the attorney noticed a clause in the loan contract by which the borrower promised that its attorney would not seek to obtain similar loans for other parties from Big Bank’s primary market competitor in that state. The clause required evidence of a contractual agreement by the attorney – whether with Big Bank or with the client – to this effect. The client desperately needed the loan to survive a temporary downturn in its own industry, and the attorney could easily direct future clients to this same lender, Big Bank, to obtain loans on comparable terms to what the competitor bank offered. In fact, most of the attorney’s clients ended up getting their financing through Big Bank, and only rarely had the attorney succeeded in securing loans for clients through the competitor. The contract provision seemed harmless to the attorney, though it would be enforceable. Is it proper for the attorney to sign off on these loan documents for this client, including this clause in the contract?

No, because this agreement impermissibly restrains the attorney’s right to practice.

MPRE

Big Bank routinely hired lawyers as outside counsel on various matters, and it required each one to sign an Outside Counsel Agreement (OCG) as part of its contract of engagement for legal representation. Big Bank’s OCG included the following provision: Notwithstanding the rules and opinions set forth in ABA or state ethical opinions, regulations, or cases applicable to outside counsel, outside counsel agrees to treat Big Bank and all its subsidiaries as one entity for analyzing conflicts of interest. Big Bank will ordinarily give informed consent, confirmed in writing, to waive conflicts in transactional matters, whenever the bank’s interests will not be impaired. For conflicts of interest, Big Bank shall include all organizations and entities delineated in the attached APPENDIX, which Big Bank may amend at any time. An attorney has an opportunity to work as outside counsel for Big Bank on a specific matter, but she is concerned about this provision. Would it be proper for the attorney to accept this OCG by contractual agreement?

Yes, because the OCG provision creates an impermissible restraint on the attorney’s right to practice law.

MPRE

Conglomerate Corporation routinely hires outside counsel for representation on legal matters, and it requires the lawyers to sign an Outside Counsel Agreement (OCG) that contains the following provision: ATTORNEY agrees not to represent any party adverse to CONGLOMERATE CORP., or any entity in the APPENDIX, without prior written consent. In no event may ATTORNEY represent an adverse party against CONGLOMERATE in litigation. The APPENDIX contains a confidential list of entities ATTORNEY must use in screening for conflicts. The APPENDIX includes some entities that may be affiliated with CONGLOMERATE’s parent companies, as well as entities that may not be controlled by CONGLOMERATE or its parent companies, but in which they may have an ownership interest. Would it be improper for an attorney to enter into this agreement, if it includes this OCG provision?

No, because this agreement impermissibly restrains the attorney’s right to practice.

MPRE

Conglomerate Corporation offered to hire an attorney as outside counsel for a specific legal matter. Conglomerate’s OCG (outside counsel agreement) with all outside lawyers it hires includes the following provision: ATTORNEY agrees that it would constitute an impermissible conflict of interest to represent a significant competitor of CONGLOMERATE CORP. or its subsidiaries or affiliates. The APPENDIX attached to this document includes a list of CONGLOMERATE CORP. subsidiaries. Before ATTORNEY’S representation begins, ATTORNEY must disclose in writing the names of any national or regional retailers or any significant competitors of CONGLOMERATE CORP. or its subsidiaries or affiliates that ATTORNEY represents, as well as a general description of the type of representation that ATTORNEY’S firm provides to such client(s). Is it proper for Conglomerate’s in-house counsel to require outside counsel to agree to this provision in the OCG?

No, the agreement places an impermissible restriction on the attorney’s ability to practice law, and it goes beyond the constraints of the conflict of interest rules.

MPRE

An attorney worked as in-house counsel at Conglomerate Corporation. Her employment agreement with Conglomerate Corporation that she would not, following her employment there, represent any client in litigation against Conglomerate. General Counsel for Conglomerate maintained that this was necessary to prevent lawyers who left there from using confidential information they learned during their time at Conglomerate against the company in litigation thereafter. In other words, the contractual provision merely mirrored the duties a lawyer in that situation would have under the conflicts of interest rules. Would this agreement be enforceable, if the attorney left Conglomerate Corporation and then represented a client who had a contract claim against the company?

No, the agreement imposes an impermissible restriction on lawyers’ ability to practice law.

MPRE

An attorney worked as in-house counsel at Conglomerate Corporation. Conglomerate had a problem with lawyers who left its legal department to work for its suppliers – the lawyers would contact their friends who still worked for Conglomerate to solicit additional supply contracts, or to negotiate more favorable terms on existing contracts. Worse, the lawyers could also make strategic use of their knowledge of Conglomerate’s internal procurement practices (such as the time of year when certain major supplier contracts were up for renewal). General Counsel for Conglomerate started including in its contracts with all new in-house counsel a prohibition on departing lawyers who work for Conglomerate’s corporate vendors, either as in-house counsel or with a law firm representing the vendor, from contacting any of Conglomerate’s employees. Is this agreement proper, under the Model Rules?

No, because even limiting the attorney’s ability to use a specific expert witness against this defendant would be an impermissible restriction on the attorney’s ability to practice law.

MPRE

An attorney represented a plaintiff in a claim against Conglomerate Corporation and was remarkably effective in her efforts, mostly because she hired Professor Stevenson as an expert witness. After the deposition of Stevenson, Conglomerate realized they needed to settle the case before trial. Conglomerate offered a very generous settlement to the plaintiff, including the full amount the plaintiff sought as recovery in its pleadings, plus reasonable attorney’s fees, and even some additional stock options in Conglomerate Corporation. Conditions of the settlement included a waiver and release of all the plaintiff’s claims, including potential claims not part of this lawsuit, and an agreement by the attorney never to use Professor Stevenson again as an expert witness in a case against Conglomerate. The settlement imposed no other restraints on the attorney, and it did not restrain Professor Stevenson from serving as a fact witness (as opposed to expert) in the future. Assume for this question that Professor Stevenson is not a licensed attorney in this jurisdiction. Is this agreement proper, under the Model Rules?

The insurer should send the check to the attorney’s new firm as loss payee, and the attorney should send no money at all to Small Firm.

MPRE

An attorney made a lateral move to Small Firm. The managing partner had the attorney sign an employment contract on his first day, which included a provision under which the attorney agreed that upon leaving employment, he would pay his former employer ninety-five percent of any attorney fees earned in a contingent-fee settlement from any Small Firm clients who might follow the attorney when he left. The attorney worked for Small Firm for seven years, then left to start his own practice. Before the attorney left Small Firm, however, he had begun representation of a client who was an accident victim, and the client choose to follow the attorney to his new firm, to continue the representation. The attorney eventually obtained a generous settlement for the client; the attorney’s contingent fee was one-third of the award, after deducting fees and expenses. The managing partner immediately notified the attorney that he had a contractual obligation to pay Small Firm ninety-five percent of the fee from the settlement, and notified the defendant’s insurer, that it should send its check to Small Firm as the loss payee rather than the attorney’s new firm. What is the proper result in this case?

No, because even limiting the attorney’s ability to shop for forum or venue in future cases for other plaintiffs would be an impermissible restriction on the attorney’s ability to practice law.

MPRE

An attorney brought a class action lawsuit against Conglomerate Corporation and was remarkably effective in her efforts, mostly because she was brilliant about forum shopping. After discovery, Conglomerate realized they needed to settle the case before trial. Conglomerate offered a very generous settlement to the plaintiff class, including the full amount sought as recovery in the pleadings, plus reasonable attorney’s fees. Conditions of the settlement included a nondisclosure agreement about the terms of the settlement, and an agreement with this attorney limiting venue and forum options in future cases against Conglomerate brought by non-settling plaintiffs. The settlement imposed no other restraints on the attorney. Assume that the attorney did not care anymore about forum and venue, because she had learned enough about Conglomerate Corporation’s activities that she thought she could easily win future cases in any court. Is this agreement proper, under the Model Rules?

Yes, because the agreement would be an impermissible restriction on the right to practice law.

MPRE

Conglomerate Corporation was a defendant in multidistrict litigation, and a plaintiff’s attorney represented many different plaintiffs in these related cases against Conglomerate. The attorney and Conglomerate reached a settlement agreement for one group of claimants. The settlement was generous toward those plaintiffs, but it included an agreement by the attorney to withdraw as counsel from representing the other plaintiffs in related cases who had not yet settled their claims. Is the attorney correct in believing it would be improper to sign this agreement with this group of plaintiffs?

No because forfeiting the attorney’s own work product in the case could restrict her future practice of law in similar cases.

MPRE

An attorney represented a plaintiff in a wrongful death case arising out of a prison riot, which included many claims and cross-claims. The case ended in settlement. The defendant’s settlement offer included two conditions: first, the commonplace requirement that the attorney and client not disclose the amount of the settlement; and second, that the attorney give defendant counsel her entire file to keep under seal, meaning the attorney could not keep copies of her own work product in the case. She would have to turn over her own personal notes and internal memoranda in the file from her interns and associates. Would it be proper for the attorney to agree to this as a condition of a large monetary settlement for her client?

No, prohibiting the lawyer from using any information learned in the representation is an impermissible restriction on the lawyer’s right to practice.

MPRE

An attorney represents a large corporate defendant in a tort action over a defective product line. The current action is the first of what may be many such lawsuits, but the problems with its product line have not received any media attention yet, so the company decides to settle the matter quietly. Recognizing that he has a duty to protect the legal interests of his client, the attorney asks for three conditions in the settlement. First, the plaintiff agrees to a waiver and release of this and any other claims arising out of the use of this product, at least up to that time. Second, the plaintiff and the attorney must agree not to disclose the settlement amount to anyone. Third, the plaintiff’s lawyer must agree not to use any information learned in the current representation in any future representation against the corporate defendant, whether in litigation or transactional matters. The attorney recognizes that there can be no restrictions placed on the lawyers right to practice law, so he does not ask the lawyer to refrain from representing other plaintiffs against the corporation, but only that the information from this case not carry over into other unrelated cases. The attorney also points out to opposing counsel that the conflict of interest rules would already prohibit the attorney from using any information learned in a representation against the client. Similarly, the confidentiality rule forbids the disclosure (without the client’s consent) of confidential information learned from any source during the representation. Thus, the condition in the settlement overlaps with other disclosure restraints that the Model Rules impose on the other lawyer. Opposing counsel is a notorious plaintiff’s lawyer in that region, receiving frequent reprimanded for ethical violations from the state bar. The lawyer has a reputation for bringing up irrelevant but inflammatory evidence from other cases in his trials, telling the jury, “You wouldn’t believe what this same company did to my other client!” It seemed appropriate, therefore, to the attorney for this defendant to ask for settlement conditions that recognize this lawyer’s previous bad behavior. Is the attorney correct?

Yes, because restrictions on the right to practice law are permissible as a condition of retirement benefits.

MPRE

An attorney in a small partnership decided it was time to retire. The partnership agreement had clear provisions for the retirement of partners, in which the partnership would buy out the retirement partner’s share, including an hourly prorated amount for work on matters that were still pending and had not yet generated divisible fees. The retirement provisions also provided a substantial pension for the retiring partner, purchase of a single-term life insurance policy, and separate payments from an annuity. A condition of these retirement benefits was that the partner permanently leave the practice of law. Is this condition proper?

Yes, it is a universally recognized exception to the rule against restrictions on lawyer’s right to practice law that corporate legal departments can require that in-house counsel confine their entire practice of law to the organization’s legal affairs.

MPRE

Conglomerate Corporation has a rule for in its legal department against “side hustles,” that is, its lawyers working cases for private clients on the side, even on a pro bono basis. The rule, which it embodied in its employment contract with all the in-house attorneys who work there, became a policy there when General Counsel was targeting a certain employee in the legal department, for purely personal reasons, and needed to create an excuse to fire the lawyer. Is this rule proper?

Yes, because extending the statute to pro bono representation of the capital defendant in other cases would constitute an impermissible restriction on the right to practice law.

MPRE

A criminal defendant received a death sentence after his murder conviction. The defendant's attorney, a court-appointed lawyer representing the defendant at state expense, had already been representing the defendant in an earlier manslaughter (noncapital) case, which he was handling on a pro bono basis. In this other manslaughter case, the attorney filed a motion alleging newly discovered evidence of innocence, with a view toward eliminating one of the aggravating factors that was also a justification for the death sentence in the capital case. The state then moved to disqualify the attorney from representing defendant in the capital case, arguing that state-appointed capital counsel could not represent a capital defendant in more than one proceeding at a time. A state statute prohibited state-appointed capital counsel from representing a capital defendant in a noncapital proceeding at state expense. Can the attorney avoid disqualification because he is handling the noncapital case pro bono?

Attorney has the burden of proof to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding.

MPRE

An attorney practices corporate securities law in a Wall Street firm. The attorney is also one of three owners of a financial forecasting consulting firm, Trends Tomorrow, which employs several well-known economists and financial analysts. The attorney refers clients to this firm when they need consultants to advise them about the timing of new stock offerings, projections for share price and profit forecasts, and so on. The attorney duly discloses to clients before referring them that she is a part owner of the consulting firm and that they are free to shop around and hire other consultants if they prefer; she also explains that the Trends Tomorrow is not a law firm and provides only financial forecasting services. Trends Tomorrow is in the building next door to the attorney’s Wall Street firm, and when clients go there, Trends Tomorrow explains as part of their service contract that they provide no legal services. Eventually, complaints emerge that Trends Tomorrow has been leaking confidential client information to the press, and that the consulting firm has potential conflicts of interest, advising competing clients about strategies to encroach on one another’s’ market share. The attorney faces disciplinary charges for these violations, but the attorney claims that the complaining clients need to show that the disclosures provided were inadequate to apprise them of the fact that the Rules of Professional Conduct for lawyers would not apply to Trends Tomorrow. Who has the burden of proof on this issue?

No, a lawyer testifying as an expert is not providing law-related services and does not have a client-lawyer relationship with the party that has hired him.

MPRE

An attorney developed expertise regarding the area of legal ethics and legal malpractice. Another firm hired the attorney to testify as an expert in an adjudication about the reasonableness of the firm's fees. The attorney has testified as an expert regarding legal fees and legal ethics on several prior occasions. During his cross-examination by the lawyer representing the opposing party, the attorney had to answer questions that forced him to disclose some unfavorable information about the client of the firm that had hired him as an expert. The attorney did not object that the information was confidential or attempt to assert privilege; he answered the questions frankly and objectively. If he had been representing the client directly, the disclosures would have clearly violated his duty of confidentiality. The answers were a setback to the interests of the party that had hired him, and the lawyers and their client were upset. Could the attorney be subject to discipline for his actions while testifying as an expert witness?

No, because a lawyer is subject to the duty of confidentiality, as well as the other ethical rules, with respect to the provision of law-related services, that are not distinct from the lawyer’s provision of legal services to clients.

MPRE

An attorney works for a firm that handles residential real estate closings. The firm also provides title insurance, as part of the legal representation it offers to clients, but for an additional fee. Nonlawyers also provide title insurance in that state, for comparable prices. A prospective client met with the attorney for an initial consultation about their anticipated purchase of a home. Another client of the attorney's firm had referred the prospective client to the attorney. When the attorney mentioned that the firm would also provide title insurance for an additional fee, the prospective client asked if the person who had referred her to the attorney had obtained title insurance through the firm, and how much they had paid for it. Would it be permissible for the attorney to share this information with the prospective client without first obtaining the other client's consent?

No, because lobbying is a law-related service that a nonlawyer could do, and is distinct from the lawyer’s legal services, according to the retainer, so the conflict of interest rules do not apply.

MPRE

An attorney practices commercial real estate law in the state capitol, but also provides legislative lobbying services for some clients, especially for firms seeking lucrative government contracts. For example, working on a retainer, the attorney successfully lobbied his state legislature to privatize most of its prison system, and to give his client the contract to operate the private prisons. His client continues to pay the retainer and the attorney continues to lobby for longer statutory minimum sentences for crimes, so that the private prisons remain full. The attorney uses a separate retainer agreement for lobbying work, which specifies that he is not representing the client as their lawyer, but only as a lobbyist, and is not providing legal advice or legal services under their agreement. Meanwhile, one of the attorney’s other clients faces charges of securities fraud and hires the attorney to handle his appeal, which includes arguing that the mandatory minimum sentences are unconstitutional. The criminal defendant signs a written waiver of the potential conflict of interest the attorney has over the mandatory sentencing issue, but the attorney fails to obtain a similar waiver from the private prison client on whose behalf he lobbied for the mandatory sentencing laws. If the attorney is successful in having mandatory sentencing laws declared unconstitutional on behalf of his criminal client, will he be subject to discipline for the conflict of interest with his lobbying client?

Both the legal services (incorporating) and the law-related related services (writing business plans and arranging investor meetings) would be subject to the requirements of the Rules of Professional Conduct.

MPRE

An attorney has expertise in launching new businesses. His undergraduate major was entrepreneurship, and he has numerous connections among investment bankers, and venture capitalists in the area. Entrepreneurs seek him out to incorporate their new businesses and help them find loans and equity investors for startup. The attorney drafts articles of incorporation and bylaws. He handles name registration with the Secretary of State, arranges meetings with local commercial bankers and investors, and helps write business plans and market analysis in anticipation of these meetings. Which of the following is true regarding the attorney’s activities?

Yes, because he did not disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter in connection with an admission to the state bar.

MPRE

An attorney agreed to write a recommendation letter for admission to the bar on behalf of the law student who had worked for him part-time throughout law school. The student had consistently behaved appropriately during her employment, in compliance with the ethical rules for lawyers and law firms. On one occasion, the student intern had confided in the attorney that she had faced academic discipline for plagiarism on a law school seminar paper, and that she was very ashamed of herself about the incident and had accepted a failing grade in the class. She took an overload of courses the following semester to make up for the lost credits from the course she failed. The attorney did not mention this incident at all in his “character and fitness” recommendation to the state bar, because he felt it was out of character and did not represent the way the student normally behaved at the workplace. He also assumed the student would report it herself or that the bar would inquire about the failing grade on her law school transcript. The bar admissions board eventually learned about the incident only from the law school administration, which turned over the student’s disciplinary records. Could the attorney who wrote the favorable recommendation be subject to discipline for filing to mention or address the incident?

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

MPRE

An attorney faced a grievance over a client complaint regarding his neglect of the client’s matter. The attorney knew that he had never formally agreed to represent the client, but instead had met with the client once, determined that he had a conflict of interest, and he had refused to represent the potential client by both oral and written communication. The client failed to hire another lawyer, and mistakenly (unreasonably) believed that the attorney she had met with was, in fact, representing her. Because he knew the case was without merit, he did not respond to the state bar when the disciplinary authorities requested a formal response from him. In the end, the client withdrew her complaint and the disciplinary authorities dismissed the grievance as frivolous. The board then commenced disciplinary proceedings against the attorney for failing to respond to its requests in the case it had dismissed. Was the attorney’s refusal to respond permissible in this case?

No, because a lawyer representing an applicant for admission to the bar, or a subject of a disciplinary action, comes under the rules applicable to the client-lawyer relationship, including the duty of confidentiality.

MPRE

An attorney agreed to represent an applicant to the state bar – a recent law school graduate – in her hearing before the state bar admissions board, which had tentatively denied her application for making false statements on her bar application. The board formally requests the applicant and her attorney make full disclosures about the events in question to help resolve the matter. The client (bar applicant) explains the entire situation to her attorney, including some self-incriminatory information – it turned out that the applicant’s misbehavior had been much more serious than the board was aware. The attorney did not disclose this latest information, which would have made it much clearer to the board that the applicant lacked the character and fitness to practice law. Could the attorney be subject to discipline for this action?

Yes, because it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct.

MPRE

An attorney faced a disciplinary action over accusations that she had neglected a client matter and had not communicated enough with the client. The state disciplinary authority requested a written account of her version of what happened, and it asked her ten or twelve probing questions during the hearing. At the conclusion of the hearing, the disciplinary tribunal decided that the client complaint was without merit and cleared the attorney of all charges in that regard. At the same time, it also concluded that the attorney had answered one question during the hearing untruthfully, and that she had made a minor misrepresentation regarding dates in her written statement to the board. The tribunal therefore filed a separate grievance against the attorney for these misrepresentations. Could the attorney be subject to discipline for incidental misrepresentations to the grievance committee if the same committee had decided that the underlying case had no merit and issued a dismissal?

No, because the rules requiring attorney candor to disciplinary authorities are subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions.

MPRE

An attorney faced disciplinary action over a client grievance. The disciplinary tribunal asked the attorney several probing questions about her handling of client funds. The attorney had, in fact, used some client funds to pay off a gambling debt, so she was less worried about a temporary suspension of her law license than about potential criminal charges for embezzlement. The attorney, therefore, invokes her Fifth Amendment privilege against self-incrimination and refuses to answer the questions. The disciplinary tribunal then determines that it lacks substantial evidence that the attorney mishandled client funds, but it commences disciplinary proceedings over the attorney’s refusal to answer some of its questions. Could the attorney be subject to discipline for refusing to answer the questions in this scenario?

Yes, a person relying on such constitution protections in response to a question must do so openly and not use the right of nondisclosure as a justification afterward for failure to comply with the rules requiring disclosures to the disciplinary authorities.

MPRE

An attorney faced disciplinary action over a client grievance. The disciplinary tribunal asked the attorney several probing questions about her handling of client funds. The attorney had, in fact, used some client funds to pay off a gambling debt, so she felt less worried about a temporary suspension of her law license than about potential criminal charges for embezzlement. The attorney, therefore, simply refuses to answer the questions, without offering any explanation. The disciplinary tribunal then determines that it lacks substantial evidence that the attorney mishandled client funds, but it commences disciplinary proceedings over the attorney’s refusal to answer some of its questions. The attorney now claims she was merely exercising her Fifth Amendment right to refrain from self-incriminating statements. Could the attorney be subject to discipline for refusing to answer the questions in this scenario?

Yes, a lawyer shall not make a statement that the lawyer knows to be false, or with reckless disregard as to its truth or falsity, concerning the integrity of a public legal officer.

MPRE

A criminal defense attorney was angry at the local prosecutor for pushing forward with a certain matter against one of the attorney’s clients. In a state of frustration, the attorney penned a letter to state officials responsible for overseeing the local prosecutors, in which he accused the prosecutor in his case of specific instances of witness tampering, destruction of evidence, and framing innocent victims for crimes they did not commit. The attorney based these allegations solely on inferences that she had drawn from the unfavorable situation with her own case, and some rumors circulating among inmates in the county jail. Could the attorney be subject to discipline for sending this letter?

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

MPRE

A district attorney had a dispute with certain judges in the criminal court in his locale. At one point, the district attorney held a press conference at which he criticized the judges, blaming the large backlog of pending criminal cases on these judges’ inefficiency, poor work ethic, and excessive vacations. He went further and mentioned that he would not authorize court funds for DNA testing during police undercover investigations, which hindered the enforcement of vice laws. In conclusion, he said, “All this raises questions about racketeer influences on our lazy judges.” The district attorney did not have a reasonable belief that all these statements were true, but at the same time, he was not acting with reckless disregard with the truth. He believed what he said, but he was not entirely reasonable in his belief. Was it permissible for the district attorney to make these statements?

No, even though the bar has a right to place restrictions on lawyer speech, the complaints here would be permissible under the Model Rules and First Amendment jurisprudence.

MPRE

A criminal defense attorney received a court appointment to represent a defendant, and at the end of the representation, she sought compensation for her legal fees from the appropriate courthouse office. Unfortunately, she did not have some of the receipts and documentation to verify some of her fees, so she received only half of the compensation she expected. Angered by this incident, the attorney sent a letter to the judge’s secretary, in which he harshly criticized that local court’s administrative system for compensating appointed counsel. The letter declared that he would not submit the additional documentation required for compensation, even if that meant he could no longer accept court appointments from the judges in that courthouse. An objective reader would have thought the letter “exhibited unlawyerlike rudeness,” as one of the judges at the courthouse put it. Could the attorney be subject to suspension of his law license for sending this letter?

No, a lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

MPRE

An attorney was running for judicial office. On her campaign website, she referred to herself as “Madame Justice,” and depicted herself in traditional judicial robes, even though she had never held judicial office before. The statement and photo were impermissible under the state judicial code, but she was not yet a judge, and it did not violate the regular attorney advertising rules, as she was not soliciting or appealing to potential clients for her legal practice through the campaign website. Was it permissible for the attorney to include these statements and photos on her campaign website while running for judicial office?

Yes, because a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.

MPRE

An attorney was upset when he lost a high-stakes bench trial. When friends and acquaintances asked him about it in the following weeks, he would bitterly complain that the judge must have received a bribe from the opposing party, because there was no way that a reasonable judge could have ruled against the attorney’s own client, given the evidence in the case. The attorney has no reason to think that the judge accepted a bribe except that he was shocked when he lost the case. Could the attorney be subject to discipline for making such comments?

Yes, because a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.

MPRE

Texas, like many other states, elects state trial judges by popular vote. A well-known liberal-progressive judge is running for reelection. An attorney who is a staunch conservative is campaigning for the opposing candidate from the other party. At a campaign rally, the attorney declares that the liberal judge (seeking reelection) is completely unqualified and incompetent to serve in the judiciary, and that he is an activist judge who uses his court to push a certain political and social agenda. The judge graduated from a prestigious law school, was formerly a partner at a large law firm, and is active in the state bar. He does, however, give consistently lenient sentences to criminal defendants who are black or Hispanic, and has always ruled in favor of unions when he adjudicated cases involving collective bargaining agreements. The judge learns of these remarks by the attorney and files a grievance. Could the attorney be subject to discipline?

No, because assessments by lawyers are relied on in evaluating the professional or personal fitness of persons under consideration for appointment to judicial office, so expressing honest and candid opinions on such matters contributes to improving the administration of justice.

MPRE

A would-be judge asked his former law school classmate, a practicing lawyer, to write a recommendation letter for him as part of his application and vetting process for a judicial appointment. The attorney obliged and wrote a glowing recommendation, entirely favorable, even though he personally knew that his friend (the one seeking to be a judge) was an alcoholic. Was is proper for the attorney to write such a letter?