MPRE Review for Professional Responsibility
MPRE Review questions and answers
Each question may include, among others, one of the following key words or phrases:a. “Subject to discipline” asks whether the conduct described in the question wouldsubject the lawyer to discipline under the provisions of the ABA Model Rules ofProfessional Conduct.b. “May” or “proper” asks whether the conduct referred to or described in thequestion is professionally appropriate in that it:i. would not subject the lawyer to discipline;ii. is not inconsistent with the Preamble, Comments, or text of the ABAModel Rules of Professional Conduct; andiii. is not inconsistent with generally accepted principles of the law oflawyering.
MPRE Review question 1.
Attorney Able, who is corporate counsel for Company, is investigating a possibletheft ring in the parts department of Company. Attorney Able knows thatEmployee Ed has worked in the parts department for a long time and believes thatEd is a suspect in the thefts. Able believes that if Ed were questioned, EmployeeEd would not answer truthfully if he knew the real purpose of the questions. Ableplans to question Ed and falsely tell him that he is not a suspect and that hisanswers will be held in confidence.Is Attorney Able subject to discipline if she so advises Employee Ed?
a. Yes, because Attorney’s conduct involves misrepresentation.
b. Yes, unless Attorney first advises Employee to obtain counsel to representEmployee.
c. No, because no legal proceedings are now pending.
d. No, because Attorney did not give legal advice to Employee.
Answer: A (Rule 4.1(a))Explanation: When dealing with non-parties, a lawyer cannot make a “false statement ofmaterial fact.” Rule 4.1(a). As we discussed, this rule prohibits using a “pretext” or fakereason during an internal corporate investigation. Simply stated, the lawyer cannot lie tothe employee.
MPRE Review Professional Responsibility Question 2
Lawyer Larry’s standard retainer contract in divorce cases provides for thepayment of a fee of one-third of the amount of alimony or property settlementsecured by Larry. Larry declines to represent clients who do not agree to thisarrangement.Is Larry’s standard retainer contract proper?
a. Yes, because clients often prefer to pay a lawyer a fee based on the outcomeof the case.
b. Yes, if a fee of one-third is not excessive.
c. No, because a lawyer may not acquire a proprietary interest in a cause ofaction.
d. No, because the fee is contingent.
Answer: D (Rule 1.5(d))Explanation: This is just a “shall not.” Under Rule 1.5(d), a lawyer cannot use acontingency fee in criminal cases or “domestic relations matter[s].” “Domestic relationsmatters” encompasses fees contingent on securing a divorce, fees contingent upon theamount of alimony or support or fees contingent upon a property settlement. Be alert to this Rule! It is an easy one to test, and pops up often on bar exams and theMPRE.
MPRE Review Professional Responsibility Question 3
Ann represents Defendant in bitter and protracted litigation. Ann, at Defendant’srequest, has made several offers of settlement to Plaintiff’s lawyer Betty, all ofwhich have been rejected.During a week’s recess in the trial, Ann and Plaintiff were both present at acocktail party. Plaintiff went over to Ann and said, “Why can’t we settle that casefor $50,000? This trial is costing both sides more than it’s worth.”Which of the following is a proper response by Ann?
I. “I can’t discuss this matter with you.”
II. “If that’s the way you feel, why don’t you and Defendant get together.”
III. “I agree. We already have made several offers to settle this matter.”
a. I only.
b. I and II, but not III.
c. II and III, but not I.
d. I, II and III.
MPRE Review Answer: A (Rule 4.2)Explanation: A lawyer cannot communicate with a person that the lawyer knows isrepresented by counsel. Rule 4.2. The person’s consent is irrelevant. The lawyer “mustimmediately terminate communication” with the person, and obtain consent of theperson’s counsel. Accordingly, II and III are incorrect.
MPRE Review Question 4
Attorney Alpha represents Client, the plaintiff in a medical malpractice case.Alpha’s contract with Client provides for a contingent fee of 20% of the recoveryby settlement and 30% if the case is tried, with a total fee not to exceed $50,000.Alpha associated with Attorney Beta, a solo practitioner, in the case, with Client’swritten consent and after full disclosure of the fee arrangement between Alphaand Beta. Beta is both a medical doctor and a lawyer and is well-qualified byexperience and training to try medical malpractice cases.The fee agreement between Alpha and Beta reads as follows:“The total fee in this case is 20% of the recovery by settlement and 30%, iftried, with a maximum fee of $50,000. Alpha will help with discovery andwill be the liaison person with Client. Beta will prepare the case and try itif it is not settled. Alpha and Beta will divide the fee, 40% to Alpha and60% to Beta.”
Are Alpha and Beta subject to discipline for their agreement for division of thefee?
a. Yes, because Beta is a medical doctor.
b. Yes, because Alpha will not try the case.
c. No, if the division of the fee between Alpha and Beta is in proportion to actualwork done by each.
d. No, because the total fee does not differ from that contracted for by Alphawith Client.
MPRE Review Answer: C (Rule 1.5(e))Explanation: A lawyer may split a fee with another lawyer if all three requirements aresatisfied: (1) the division is in proportion to the work done by each lawyer or the lawyersassume joint responsibility (including liability for malpractice); (2) the client agrees inwriting to the fee-sharing, including the specific share each lawyer will get; and (3) thetotal fee is reasonable. The facts state that the Client has given written consent to the feesharing.Accordingly, “C” is the correct answer.
NOTE: A lawyer cannot share a fee with a non-lawyer or pay any kind of “referral” feeto a non-lawyer. Rule 5.4(a) & 7.2(b). But, here, the facts state that Beta is a lawyer (inaddition to being a doctor), so “A” is incorrect.
MPRE Review Multiple Choice Question 5
The law firm of Martyn & Fox has a radio commercial which states:“Do you have a legal problem? Are you being sued? Consult Martyn &Fox, licensed attorneys at law. Initial conference charge is $25 for onehour. Act now and protect your interests. Call at 1234 Main Street;telephone are code (101) 555-4567.”
Are Martyn & Fox subject to discipline for the commercial?a. Yes, because the qualifications of the lawyers are not stated.
b. Yes, because the radio broadcast may encourage litigation.
c. No, if all the statements in the radio broadcast are true.
d. No, unless the radio broadcast is heard outside the state in which they arelicensed.
MPRE Review Answer: CExplanation: Rule 7.1 prohibits “false or misleading” communications about a lawyer’sservices (i.e., advertisements). Accordingly, “C” is the correct answer. (There are nogeographical restrictions under Rule 7.1, so “D” is not correct.
MPRE Review Multiple Choice Quiz
1. Attorney Arnot is defending Clive, who has been indicted for burglary. During aninterview, Clive told Arnot that, before he first consulted Arnot, he hadcommitted perjury while testifying before the grand jury that indicted him.Attorney Arnot is subject to discipline if he:
a. continues to represent Clive.
b. continues to represent Clive unless Clive admits his perjury.
c. does not inform the authorities of the perjury.
d. informs the authorities of the perjury.
Answer: D (Rule 1.6(a), Rule 3.3(a)).
Explanation: This one is very tricky. Rule 3.3(a)(3) prohibits the lawyer from offeringevidence that the lawyer knows to be false: “A lawyer shall not knowingly…”. So, ifAttorney Arnot was representing Clive at the time of the grand jury testimony, Rule3.3(a)(3) would have been triggered. But, Attorney Arnot was not representing Clivewhen he testified falsely, so Arnot has not violated Rule 3.3. Instead, the client hascommunicated a past crime or fraud. None of the 1.6 exceptions apply. Accordingly,Rule 1.6(a) requires Arnot to maintain confidentiality.
2. Attorney Adler filed an action on behalf of Cleo for breach of contract. In fact,Cleo had no legal basis for the suit, but wanted to harass Donna Defendant. Toinduce Adler to file the action, Cleo made certain false statements of material factto Adler, which Adler included in the complaint filed against Donna.At the trial of the case, Cleo took the stand and testified as set forth in thecomplaint. The trial court ordered judgment for Cleo. After judgment wasentered, Cleo wrote Attorney Adler a letter marked “Confidential,” in which Cleoadmitted that he had lied to Adler and had testified falsely in the case. The case ispending on appeal.
If Attorney Adler does nothing, is he subject to discipline?
a. Yes, because Cleo had committed a fraud on the court in which the casewas tried.
b. No, because Attorney Adler learned the facts from Cleo in confidence.
c. No, if disclosure by Attorney Adler could result in Cleo’s prosecution forperjury.
d. No, because the judgment is not final.
Answer: A (Rule 3.3(a)).
Explanation: Rule 3.3(a)(3) prohibits the lawyer from offering evidence that the lawyerknows to be false. Here, unlike the example above, Attorney Adler was representingCleo when Cleo gave false evidence (the perjured testimony) to the court. Thus, Adler“offer[ed] evidence that the lawyers knows to be false.” Rule 3.3(a)(3). Under Rule3.3(a)(3), Adler now has a duty to “take reasonable remedial measures, including ifnecessary, disclosure to the tribunal.” Id. When Rule 3.3 istriggered, candor to the tribunal trumps confidentiality, so “B” is incorrect. See Rule3.3(c). There is no exception or consideration of the harm to the client as a result of thedisclosure. So, “C” is incorrect.Under Rule 3.3(c), the lawyer’s obligations to the tribunal continue until the“conclusion of the proceeding.” Comment 13 explains that a proceeding has concludedwhen a final judgment has been affirmed on appeal or the time to appeal has expired.Here, the case is pending on appeal, so the proceeding has not concluded. Accordingly,“D” is incorrect.
3. After both parties had completed the presentation of evidence and arguments,Judge Butler took under advisement a case tried in his court without a jury inwhich Attorney Anderson had represented the plaintiff. The case involved adifficult fact issue of causation and a difficult issue of law.After the case was under advisement for several weeks, Anderson heard rumorsthat Judge Butler was having difficulty determining the issue of factual causationand was uncertain about the applicable law. Immediately upon hearing theserumors, Anderson telephoned Judge Butler, told the Judge that Anderson wouldlike to reopen the case for additional evidence and briefing by the parties.Thereafter, Judge Butler reopened the case for further testimony and requestedbriefing from both parties.Was it proper for Anderson to communicate with Judge Butler?
a. Yes, because both parties were given full opportunity to present theirviews on the issues in the case.
b. Yes, because Attorney Anderson did not make any suggestion as to howJudge Butler should decide the matter.
c. No, because Attorney Anderson communicated with Judge Butler on apending matter without advising opposing counsel.
d. No, because Attorney Anderson caused Judge Butler to reopen a case thathad been taken under advisement.
MPRE Review Answer: C (Rule 3.5(b))
Explanation: This is one of the litigation “shall nots”: A lawyer shall not “communicateex parte with [a judge] during the proceeding unless authorized to do so by law or courtorder.” Rule 3.5(b). There are no exceptions to this Rule. Accordingly, A & B are bothincorrect. “D” gives the wrong rationale; it doesn’t matter if the ex parte communicationhas any effect. Accordingly, “C” is correct.
4. In Attorney Abrams’s closing statement to the court in a bench trial, Abrams said:“Your honor, I drive on the street in question every day andI know that a driver cannot see cars backing out ofdriveways as the one did in this case. I believe that myclient was not negligent and I ask you so to find.”Was Attorney Abrams’s closing argument proper?
a. Yes, if Attorney Abrams was speaking truthfully and not trying to deceivethe court.
b. Yes, because the rules of evidence are very liberal when the trial is beforea judge without a jury.
c. No, because Attorney Abrams asserted his personal knowledge of facts inissue.
d. No, if there is no other evidence in the record about the facts asserted byAttorney Abrams.
Answer: C (Rule 3.4(e)).
Explanation: Another litigation “shall not.” Under Rule 3.4(e), a lawyer shall not “assertpersonal knowledge of facts in issue except when testifying as a witness.” The onlyexception to this Rule is if the lawyer himself is a witness. “A,” “B,” and “D” do notstate proper exceptions. Accordingly, “C” is correct.
5. Attorney Allison represents Carl Client, a well-known contractor, before Agency,a state administrative agency. Agency has ordered Client to show cause whyClient’s contractor license should not be revoked for violation of agencyregulations. In a newspaper interview prior to the administrative hearing,Attorney Allison truthfully stated that: I. “Carl Client denies the charge made by Agency that Client engaged inconduct constituting grounds for revocation of Client’s license as acontractor.”
II. “The next step in the administrative process is the administrative hearing;if Agency is successful, we will appeal, and Agency still cannot revokeClient’s license until a court affirms the finding for Agency.”
III. “Client needs witnesses who are aware of the incidents that are the subjectof the hearing.”
Which statements are proper?
a. I only
b. II only
c. III only
d. I, II and III
MPRE Review Answer: D (Rule 3.6).
Explanation: Under Rule 3.6(a), a lawyer shall not make press statements that “will havea substantial likelihood of materially prejudicing an adjudicative proceeding in thematter.” This Rule applies broadly to “adjudicative proceedings,” which would includean agency hearing. Rule 3.6(b), however, provides a list of permissible statements:
(1) the claim, offense or defense involved and, except when prohibited bylaw, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and informationnecessary thereto.
Statement I is permissible under paragraph (1). Statement II is permissible underparagraph (4). Statement III is permissible under paragraph (5). Accordingly, “D” is thecorrect answer.
MPRE Review Multiple Choice Questions
1. Attorney Able is a solo practitioner whose practice is largely in the areas of tax,wills, estates and trusts. Attorney Able learned of a new Internal Revenue Serviceregulation that probably affects the trust provisions in a will she prepared forTammy Testratrix two years ago. Attorney Able has not represented TammyTestratrix since she drew the will.Is Attorney Able subject to discipline if she calls Testratrix and advises her of thenew IRS ruling and the need to revise the will?
a. Yes, if Attorney Able has any reason to believe that Tammy Testratrix hasanother lawyer.
b. Yes, because Attorney Able would be soliciting legal business from a personwho is not a current client.
c. No, provided Attorney Able does not thereafter prepare a new will for TammyTestratrix.
d. No, because Tammy Testratrix is a former client of Attorney Able.
Answer: D (Rule 7.3(a)(2))
Explanation: Rule 7.3 prohibits live solicitation for pecuniary gain. The Rule providestwo exceptions: “unless the person contacted (1) is a lawyer or (2) has a family, closepersonal, or prior professional relationship with the lawyer.” MR 7.3(a)(1)-(2). Here,because she is a former client, Tammy Testratrix has a “prior professional relationship”with Attorney Able.
2. Attorney Anderson advertises on the local television station. In theadvertisement, a professional actor says: “Do you need a lawyer? Call AttorneyAnderson – her telephone number is area code 555-555-5555. Her fees might belower than you think.”Attorney Anderson approved the prerecorded advertisement and is keeping in heroffice files a copy of the recording of the actual transmission and a record ofwhen each transmission was made.Is the advertisement proper?
b. No, unless Attorney’s fees are lower than those generally charged in the areawhere she practices.
c. No, because she used a professional actor for the television advertisement.
d. No, if she makes a charge for the initial consultation.
Answer: A (Rule 7.1)
Explanation: Under Rule 7.1, “a lawyer shall not make a false or misleadingcommunication about the lawyer or the lawyer’s services.” Language matters. Here,Attorney Anderson did not state that her fees “are lower” than other attorneys in the area;merely that her fees “might be lower than you think.” “C” is wrong because the ModelRules do not prohibit professional actors, though some state rules do. Remember, theMPRE tests on the Model Rules. Don’t get confused with state specific rules.
3. Judge Jane Johnson is presently serving on a state intermediate appellate court.This court, in written opinions by her, has decided several controversial cases inwhich the court has held that the Fourteenth Amendment to the United StatesConstitution does not guarantee due process protection to state prison inmateswho are disciplined by prison authorities for violating the prison’s rules ofconduct. Judge Johnson is now a candidate for election to a vacancy on the statesupreme court. She is vigorously opposed by several organizations concernedwith the conditions under which prisoners are incarcerated in the state’s prisons.Judge Johnson is scheduled to be interviewed on television and has been informedthat questions will be asked of her concerning those decisions and her attitude onthe subject of prisoner’s rights.Which of the following is it proper for Judge Johnson to say during the interview?
I. “I believe that the issues raised by the organizations opposing me areappropriate matters for legislative consideration.”
II. “In my opinion, incarceration for the commission of a crime carries with ita loss of civil liberties in prison discipline proceedings.”
III. “I am convinced I was right in those cases and will make the samedecision in similar cases in the future.”
A. I only
B. II only
C. I and II, but not III
D. I, II and III
Explanation: Under Canon 3(B)(10), “a judge shall not, with respect to cases,controversies or issues that are likely to come before the court, make pledges, promises orcommitments that are inconsistent with the impartial performance of the adjudicativeduties of the office.” Option “III” expressly makes a “pledge” on how Judge Johnsonwill vote in future cases. Option “II” likewise commits Judge Johnson’s vote – the issueis whether the inmates have a due process rights in prison disciplinary proceedings.Option II just slightly re-words that substantive issue and indicates the Judge’s “pledge”that an inmate is not entitled to due process (i.e., has lost civil liberties) in suchproceedings. Option “I” mirrors the comments by Justice Scalia at the Pledge Rally. Nothing in the fact patternindicates a pending or impending case, so there is no violation of Canon 3(B)(9).Accordingly, only Option “I” is proper and A is the correct answer.
4. Attorney Andy has been employed as an assistant prosecutor in the districtattorney’s office during the time that an investigation of Defendant Davidson wasbeing conducted by that office. Attorney Andy took no part in the investigationand had no knowledge of the facts other than those disclosed in the press. Twomonths ago, Andy left the D.A.’s office and formed a partnership with AttorneyBill.Last week, Davidson was indicted for offenses allegedly disclosed by the priorinvestigation. Davidson asked Andy to represent him. Andy declined to do so,but suggested Bill.Is Bill subject to discipline if he represents Davidson?
a. Yes, because Attorney Andy was employed in the district attorney’s officewhile the investigation of Defendant Davidson was being conducted.
b. Yes, unless the district attorney’s office is promptly notified and consents tothe representation.
c. No, unless Attorney Andy participates in the representation or shares in thefee.
d. No, because Attorney Andy had no responsibility for or knowledge of thefacts of the investigation of Defendant Davidson.
Explanation: This is a government conflicts problem. Under Rule 1.11(a), a formergovernment lawyer shall not represent a client in a matter in which the lawyer“participated personally and substantially” while a government lawyer. Here, AttorneyAndy did not personally and substantially participate in the investigation of DefendantDavidson. Andy “took no part in the investigation.” Accordingly, Andy does not haveany conflict, so no conflict is imputed to his partner Bill.
5. Judge Jim Jones, prior to his recent appointment to the federal court, had been anoutspoken and effective opponent of the racial segregation policies of SouthAfrica. As part of its worldwide tour, South Africa’s national soccer teamscheduled a soccer match with a team in this country. Several civil rights groupshave applied to Judge Jones for an order enjoining the playing of the proposedmatch. The matter is now pending. Only legal issues are presented. Judge Jones,after painstaking consideration, has privately concluded that he cannot decide thelegal questions without bias against the representatives of the South Africangovernment. However, no one has made a motion to disqualify Judge Jones.Must Judge Jones recuse himself in the pending matter?
a. Yes, unless Judge Jones believes he has greater expertise than other judges onthe court in legal issues involving racial segregation.
b. Yes, because Judge Jones believes that he cannot be impartial.
c. No, because the only issues presented for decision are legal questions.
d. No, because none of the interested parties have moved to disqualify JudgeJones.
Explanation: Under Canon 3(e)(1)(a), a judge “shall disqualify himself or herself” wherethe judge’s impartiality might reasonably be questioned, including where “the judge has apersonal bias or prejudice concerning a party.” Judge Jones has determined that he doeshave a personal bias against the South African government. Accordingly, B is the correct answer.
Professional Responsibility Multiple Choice MPRE Review Questions and Answers
1. Attorney Alice represented Polly in a claim involving a breach of Polly’semployment contract. The case was settled without suit being filed. Theproceeds of the settlement were paid directly to Polly, who subsequently paidAlice in full for Alice’s fees and expenses. Thereafter, Alice did no other workfor Polly.Polly is now being audited by the Internal Revenue Service. The IRS has askedAttorney Alice for details of the settlement, including the amount claimed foreach item of damage and the amounts paid for the items. Attorney Alice reportedthe request to Polly, who told Alice not to provide the information to the IRS.Is it proper for Attorney Alice to furnish the information to the IRS?
a. Yes, if the information does not involve Attorney Alice’s work product.
b. Yes, because Attorney Alice no longer represents Polly.
c. No, because Polly told Attorney Alice not to provide the information.
d. No, unless Attorney Alice believes the disclosure would be beneficial toPolly.
Answer: C (Rule 1.9(c)(2), Rule 1.6)
Explanation: This question addresses confidentiality and former clients. Lawyers owe aduty of confidentiality to former clients. Rule 1.9(c)(2). So, “B” is just wrong. Thequestion then is whether Attorney Alice may disclose under one of the confidentialityexceptions. “A” and “D” do not accurately state an exception to confidentiality.Accordingly, “C” is the correct answer – the client refuses to give consent to thedisclosure, so mum’s the word!
NOTE: The IRS could subpoena the information. The subpoena itself would not removeAlice’s duty of confidentiality. Alice would have to assert AC privilege (Remember,“privilege” is the proper response to an official request for information; “confidentiality”gets you nowhere with the court). If the court ruled against the privilege objection andordered Alice to disclose, Alice could rely on the “law or court order” exception toconfidentiality under Rule 1.6(b)(6).
2. Attorney Azur represented Buzz Buyer in a real estate transaction. Due to Azur’snegligence in drafting the agreement of sale, Buzz was required to pay for asurvey that should have been paid by Sally Seller, the other party to thetransaction. Attorney Azur fully disclosed this negligence to Buzz and Buzzsuggested that he would be satisfied if Attorney Azur simply reimbursed him forthe entire cost of the survey.Although Buzz might have recovered additional damages if he had filed amalpractice action, Attorney Azur reasonably believed that the proposedsettlement was fair to Buzz. To forestall a malpractice action, Attorney Azurreadily agreed to make the reimbursement. He drafted a settlement agreementand both he and Buzz executed it.
Was Attorney Azur’s conduct proper?
a. Yes, if Attorney Azur advised Buzz in writing that Buzz should seekindependent legal representation before deciding to enter into the settlementagreement.
b. Yes, because Attorney Azur reasonably believed that the proposed settlementwas fair to Buzz.
c. No, because Attorney Azur settled a case involving liability for malpracticewhile the matter was still ongoing.
d. No, unless Buzz was separately represented in negotiating and finalizing thesettlement agreement.
MPRE Review Answer: A (Model Rule 1.8(h)(2))
Explanation: Under Rule 1.8(h)(2), a lawyer shall not settle a malpractice claim with anunrepresented client (or former client) unless that person is advised in writing to seekindependent legal counsel and given the opportunity to seek counsel. “D” is incorrectbecause the rule does not require that the client actually obtain independent counsel.
3. Attorney Ace currently represents Big Builder, the plaintiff in a breach of contractsuit concerning the construction of a house. Big Builder also has a petition torezone a Big Builder property pending before the zoning commission. AttorneyBillings represents Big Builder in the zoning matter.Nancy Neighbor, who owns property adjoining Big Builder’s property, has askedAce to represent her in opposition to Big Builder’s zoning petition. Nancy knowsthat Ace represents Big Builder in the contract action.Is it proper for Attorney Ace to represent Nancy in the zoning matter?
a. Yes, if there is no common issue of law or fact between the two matters.
b. Yes, because one matter is a judicial proceeding and the other is anadministrative proceeding.
c. No, because Attorney Ace is currently representing Big Builder in thecontract action.
d. No, if there is a possibility that both matters will be appealed to the samecourt.
Answer: C (Rule 1.7, cmt. 6)
Explanation: Use the Concurrent Conflict Steps. This is direct adversity. The languageof the Rule states “the representation of one client will be directly adverse to anotherclient.” Rule 1.7(a)(1). The Rule does not require that the lawyer be representing bothclients – just that the representation pits one client against another. Direct adversity alsodoes not require commonality. It doesn’t matter that the matters are unrelated – just asituation that pits one client against another client. Ace represents Builder in the contractaction. He has been asked to represent Nancy in opposition to Builder’s zoning petition.Nancy is directly opposed to Builder. It all goes back to loyalty – Builder would feelbetrayed if he just showed up and saw Ace opposing the petition. We also arguably havea risk of material limit here. Think about the work Ace will do for Nancy – he will haveto get up and argue against his other client. True, the contract action is unrelated. But,will Ace give it his all against another client? Maybe he’ll soft-peddle an argument so asnot to offend Big Builder.In either case, it’s clearly a concurrent conflict. The hypo does not state that either partyhas given consent. (Always read the problem carefully). So, even assuming this is aconsentable conflict, the representation is barred because Attorney Ace has not gotteninformed consent from both clients. Accordingly, “A” and “B” are both wrong.Comment 6 states that “absent consent, a lawyer may not act as an advocate in one matteragainst a person the lawyer represents in some other matter, even if the matters arewholly unrelated.” “D” is wrong because appeal to the same court is irrelevant underconcurrent conflicts analysis.
4. Adam, Bob, and Carlos were indicted for robbing a gas station. Adam and Bobwent together to ask Attorney Abelson to represent them in their criminal defense.Attorney Abelson interviewed Adam and Bob separately, where they each toldAbelson that Carlos committed the robbery while Adam and Bob waited inCarlos’ car outside, that Carlos told them he was going to get some cigarettes, andthat they each were unaware of Carlos’ plan to rob the gas station. AttorneyAbelson agreed to represent both Adam and Bob.A week before trial, Adam told Attorney Abelson that he wanted to plead out inexchange for testifying that Bob had loaned Carlos the gun that Carlos used in therobbery. Adam also said that he and Bob had shared with Carlos in the proceedsof the robbery.It is proper for Attorney Abelson to:
a. request court approval to withdraw as lawyer for both Adam and Bob.
b. continue to represent Bob and, with Adam’s consent and court approval,withdraw as Adam’s lawyer.
c. continue to represent Adam and, with Bob’s approval and court approval,withdraw as Bob’s lawyer.
d. continue to represent Adam and Bob, but not call Adam as a witness.
Answer: A (Rule 1.7(a)(2), cmt. 23; 1.16(a)(1))
Explanation: Use the Concurrent Conflict Steps. At the start, the representation of Adamand Bob presented a substantial risk of material limit, albeit consentable because theirstories were consistent. Adam’s new story, however, changes this consentable conflict toa non-consentable conflict. As comment 23 explains, a “conflict may exist by reason ofsubstantial discrepancy in the parties’ testimony.” Attorney Abelson cannot competentlyand diligently represent Adam, and at the same time, competently defend Bob. Thinkfunctionally – Attorney Abelson would have to vigorously cross-examine one client(Adam) in order to defend the other client (Bob). Accordingly, continued representationof either Bob or Adam results in a violation of Rule 1.7 (A lawyer shall not represent aclient of the representation involved a concurrent conflict of interest). This creates amandatory withdrawal situation under Rule 1.16(a)(1). From Universal Studios we know that we can’t play “hot potato” with our clients. So, we must withdrawfrom both Adam and Bob. See also Rule 1.7, cmt. 29.
5. Attorney Adams is representing Paula Plaintiff in a paternity suit against DannyDefendant. Both Paula and Danny are well-known public figures, and the suit hasattracted much publicity. Attorney Adams has been billing Paula Plaintiff at anagreed hourly fee for his services. Recently, Paula told Adams:“I’m going broke paying you. Why don’t you let me assignyou all media rights to books, movies, or televisionprograms based on my suit as full payment for all servicesyou will render me between now and the conclusion of thesuit?”Attorney Adams replied:“I’ll consider it, but first you should seek independentadvice about whether such an arrangement is in your ownbest interests. Why don’t you do so and call me nextweek.”Is Attorney Adams subject to discipline if he agrees to Paula Plaintiff’s offer?
a. Yes, because the amount received by Attorney Adams would becontingent on the receipts from the sale of media rights.
b. Yes, because Attorney Adams has not concluded the representation ofPaula Plaintiff.
c. No, because the paternity suit is a civil and not a criminal matter.
d. No, if Paula Plaintiff received independent advice before entering into theagreement.
Answer: B (Rule 1.8(d))
Explanation: This is a personal conflict. Under Rule 1.8(d), “prior to the conclusion ofrepresentation of a client, a lawyer shall not make or negotiate an agreement giving thelawyer literary or media rights to a portrayal or account based in substantial part oninformation relating to the representation.” The exception here is “prior to the conclusionof the representation.” Accordingly, B is the correct answer.
MPRE Multiple Choice Practice Test
1. Attorney Alice, who was recently admitted to the bar, has been appointed by thecourt as counsel for Defendant David, an indigent defendant charged with afelony. After consulting with David and attempting for two days to prepare thecase for trial, Alice became convinced that she lacked the knowledge andexperience to represent David effectively.Which of the following would be proper for Attorney Alice?
I. Request permission of the court to withdraw from representing DefendantDavid because Attorney Alice knows that she is not competent to handlethe case.
II. Request the court to appoint experienced co-counsel and grant acontinuance to enable co-counsel to prepare the case.
III. Explain the circumstances to Defendant David and if David consents,proceed to represent David alone to the best of Attorney Alice’s ability.
a. I only
b. I and II, but not III
c. II and III, but not I.
d. I, II and III
MPRE Review Answer: B (Rule 1.1 & 1.16(a) & (b))
Explanation: This question raises the issue of competence. As a newly licensed attorney,Attorney Alice considers herself incompetent to handle a criminal felony case. “Alawyer can provide adequate representation in a wholly novel field through necessarystudy. Competent representation can also be provided through the association of alawyer established competence in the field in question.” MR 1.1 cmt. 2. “II” presents theoption of association with an experienced attorney. Alice, of course, could requestwithdrawal under MR 1.16(a), though as we discussed in class, the court may not grantthe request. So, “I” is proper. “III”, however, is not a proper option. “III” essentiallyasks whether a client can consent to a lack of competence. The answer is no. Consent isnot an option here. So, “III” is not proper. Accordingly, the correct answer is “B.”
2. Dennis Driver, who was being prosecuted for driving while intoxicated in ajurisdiction where there is an increased penalty for a second such offense, askedAttorney Ackerman to represent him in his criminal defense. Dennis toldAckerman that his current driver’s license had been obtained under an assumedname because his prior license had been suspended for driving while intoxicated.Dennis asked Ackerman not to disclose his true name during the course of therepresentation and told Ackerman that, if called as a witness, he would give hisassumed name. Attorney Ackerman informed Dennis that, to properly defend thecase, he must call Dennis as a witness.Ackerman called Dennis to testify and, in response to Ackerman’s question,“What is your name?,” Dennis gave his assumed name and not his true name.
Is Attorney Ackerman subject to discipline?
a. Yes, because Attorney Ackerman knowingly used false testimony.
b. Yes, if Dennis committed a felony when he obtained the driver’s license underan assumed name.
c. No, because Attorney Ackerman’s knowledge of Dennis’ true name wasobtained during the course of representation.
d. No, unless Dennis’ true name is an issue in the proceeding.
Answer: A (Rule 3.3(a)(3).
Explanation: Rule 3.3(a)(3) prohibits a lawyer from “knowingly. . . offer[ing] evidencethat the lawyer knows to be false.” By calling Dennis to testify and soliciting the falsetestimony about his name, Ackerman was offering evidence that he knew to be false. The real question is what the attorney should do next. But, inMPRE world, all that exists is the fact pattern given. So answer based on what you’vebeen told. “C” is not correct because candor to the court trumps the duty ofconfidentiality. “B” is also incorrect; even if Dennis committed a felony when he usedthe assumed name, that is a past act and Ackerman did not assist in that crime. So, evenunder B, confidentiality would apply BUT FOR the fact that the lawyer is offering thefalse evidence to a tribunal. “D” is incorrect; the materiality of the evidence is notrelevant. Accordingly, the correct answer is “A.”
3. Attorney Able is employed by Carl Client, a fugitive from justice underindictment for armed robbery. Attorney Able, after thorough legal research andinvestigation of the facts furnished by Carl, reasonably believes that theindictment is fatally defective and should be dismissed as a matter of law. Ableadvised Carl of his opinion and urged Carl to surrender. Carl told Able that hewould not surrender.Attorney Able informed the district attorney that he represented Carl and that hecounseled Carl to surrender, but that Carl refused to follow his advice. AttorneyAble has not advised Client on how to avoid arrest and prosecution and does notknow where Carl is hiding.Is Attorney Able subject to discipline if he continues to represent Carl Client?
a. Yes, because Client is engaged in continuing illegal conduct.
b. Yes, because Client refused to accept Attorney’s advice and surrender.
c. No, because Attorney is not counseling Client to avoid arrest andprosecution.
d. No, because Attorney reasonably believes the indictment is defective.
Answer: C (Rule 1.2(d))
Explanation: Rule 1.2(d) draws a line between “counsel[ing] a client to engage…inconduct that the lawyer knows is criminal or fraudulent” and “discuss[ing] the legalconsequences of any proposed course of conduct with the client. Comment 9 furtherexplains “there is a critical distinction between presenting an analysis of legal aspects ofquestionable conduct and recommending the mean by which a crime or fraud might becommitted.” Here, Able has counseled Carl to surrender. He is not counseling Carl toavoid prosecution and hide. Accordingly, “C” is the correct answer.
4. Attorney Able serves on a bar association committee established to counsel andrehabilitate lawyers who suffer from substance abuse. The day before Able wasto leave on a fishing trip, Able’s close friend Attorney Bill, disclosed to Able that,over the preceding two years, Bill had become heavily addicted to cocaine andwas afraid he had committed criminal offenses in his banking activities as a resultof his addiction. Bill asked Able to represent him. Able agreed, but explainedthat Able could do little for two weeks and would consult with Bill immediatelyupon Able’s return. While on the fishing trip, Chris, an accountant who knew thatAble represented Bill, told Able that Chris had been retained by the trustdepartment of Bank, a commercial bank, to audit several substantial trust accountsin which Bank and Bill are co-trustees. Chris also told Able that the auditfurnished incontrovertible proof that Bill had embezzled more than $100,000from the trust accounts.Must Able report Bill’s embezzlement to the appropriate disciplinary authority?
a. Yes, because Able learned of Bill’s embezzlement from Chris.
b. Yes, because Able’s failure to report would assist the concealment ofBill’s breach of trust.
c. No, because Able gained the information while representing Bill.
d. No, because the information will probably be made public by Bank.
Answer: C (Rule 1.6)
Explanation: The key here is “MUST.” The question asks whether disclosure ismandatory. Two mandatory disclosure situations are: (1) candor to thetribunal (Rule 3.3) and (2) disclosure of material facts where necessary to avoid assistinga crime or fraud by a client but only if disclosure falls under one of the exceptions toconfidentiality in Rule 1.6 (Rule 4.1). Chris is not “assisting” Bill’s embezzlement.“B” is incorrect because the embezzlement is a past crime, and Able’s services were notused to further that crime, so Rule 1.6(b)(2)-(3) do not allow disclosure. Confidentialitycovers all information learned about a client regardless of source. Where Able learnedthe information or the fact that the information may become public is irrelevant to theduty of confidentiality, which covers all information related to the representation. So,both “A” and “D” are incorrect. Accordingly, “C” is the correct answer.
5. Carl Client, who is under indictment for homicide, is represented by AttorneyAnn. In the course of representation, Carl told Ann that Carl had previouslykilled two other persons in homicides completely unrelated to the murderindictment for which Ann was providing representation. Ann, with Carl’sconsent, made a tape recording of Carl’s confession regarding the unrelatedhomicides. At Ann’s request, Carl also drew a map on which he designated theremote location of the graves of the victims of the unrelated killings. Thosebodies have not been found by the police, and Carl is not a suspect in either crime,both of which remain unsolved.Is Attorney Ann subject to discipline for failing to disclose voluntarily to theauthorities her knowledge of the two prior murders and the locations of the bodiesof the victims?
a. Yes, because as an officer of the court, Attorney Ann must disclose anyknowledge she has, whether privileged or not, concerning the commissionof prior crimes by Client Carl.
b. Yes, because Attorney Ann is impeding the state’s access to significantevidence.
c. No, because Attorney Ann did not represent or advise Client Carl withrespect to the prior crimes.
d. No, because the information was obtained by Attorney Ann in the courseof representation.
Answer: D (Rule 1.6)
Explanation: This is another confidentiality question. Rule 3.4(a) applies to physicalevidence, not client communications. Remember our two scenarios – client gives lawyerevidence or during investigation of the case, lawyer finds evidence. Neither scenario isimplicated here, and “B” is incorrect. “D” correctly states the lawyer’s duty ofconfidentiality. (This question parallels the Belge case).
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