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 would subject the lawyer to discipline under the provisions of the ABA Model Rules of Professional Conduct. b. “May” or “proper” asks whether the conduct referred to or described in the question 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 ABA Model Rules of Professional Conduct; and iii. is not inconsistent with generally accepted principles of the law of lawyering.
MPRE Review question 1.
Attorney Able, who is corporate counsel for Company, is investigating a possible theft ring in the parts department of Company. Attorney Able knows that Employee Ed has worked in the parts department for a long time and believes that Ed is a suspect in the thefts. Able believes that if Ed were questioned, Employee Ed would not answer truthfully if he knew the real purpose of the questions. Able plans to question Ed and falsely tell him that he is not a suspect and that his answers 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 represent Employee.
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 of material fact.” Rule 4.1(a). As we discussed, this rule prohibits using a “pretext” or fake reason during an internal corporate investigation. Simply stated, the lawyer cannot lie to the employee.
MPRE Review Professional Responsibility Question 2
Lawyer Larry’s standard retainer contract in divorce cases provides for the payment of a fee of one-third of the amount of alimony or property settlement secured by Larry. Larry declines to represent clients who do not agree to this arrangement. Is Larry’s standard retainer contract proper?
a. Yes, because clients often prefer to pay a lawyer a fee based on the outcome of 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 of action.
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 a contingency fee in criminal cases or “domestic relations matter[s].” “Domestic relations matters” encompasses fees contingent on securing a divorce, fees contingent upon the amount 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 the MPRE.
MPRE Review Professional Responsibility Question 3
Ann represents Defendant in bitter and protracted litigation. Ann, at Defendant’s request, has made several offers of settlement to Plaintiff’s lawyer Betty, all of which have been rejected. During a week’s recess in the trial, Ann and Plaintiff were both present at a cocktail party. Plaintiff went over to Ann and said, “Why can’t we settle that case for $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 is represented by counsel. Rule 4.2. The person’s consent is irrelevant. The lawyer “must immediately terminate communication” with the person, and obtain consent of the person’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 recovery by 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’s written consent and after full disclosure of the fee arrangement between Alpha and Beta. Beta is both a medical doctor and a lawyer and is well-qualified by experience 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%, if tried, with a maximum fee of $50,000. Alpha will help with discovery and will be the liaison person with Client. Beta will prepare the case and try it if it is not settled. Alpha and Beta will divide the fee, 40% to Alpha and 60% to Beta.”
Are Alpha and Beta subject to discipline for their agreement for division of the fee?
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 actual work done by each.
d. No, because the total fee does not differ from that contracted for by Alpha with Client.
MPRE Review Answer: C (Rule 1.5(e)) Explanation: A lawyer may split a fee with another lawyer if all three requirements are satisfied: (1) the division is in proportion to the work done by each lawyer or the lawyers assume joint responsibility (including liability for malpractice); (2) the client agrees in writing to the fee-sharing, including the specific share each lawyer will get; and (3) the total 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” fee to a non-lawyer. Rule 5.4(a) & 7.2(b). But, here, the facts state that Beta is a lawyer (in addition 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 one hour. 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 are licensed.
MPRE Review Answer: C
Explanation: Rule 7.1 prohibits “false or misleading” communications about a lawyer’s
services (i.e., advertisements). Accordingly, “C” is the correct answer. (There are no
geographical 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 an
interview, Clive told Arnot that, before he first consulted Arnot, he had
committed 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 offering evidence that the lawyer knows to be false: “A lawyer shall not knowingly…”. So, if Attorney Arnot was representing Clive at the time of the grand jury testimony, Rule 3.3(a)(3) would have been triggered. But, Attorney Arnot was not representing Clive when he testified falsely, so Arnot has not violated Rule 3.3. Instead, the client has communicated 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. To
induce Adler to file the action, Cleo made certain false statements of material fact
to 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 the
complaint. The trial court ordered judgment for Cleo. After judgment was
entered, Cleo wrote Attorney Adler a letter marked “Confidential,” in which Cleo
admitted that he had lied to Adler and had testified falsely in the case. The case is
pending 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 case was 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 for perjury.
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 lawyer knows to be false. Here, unlike the example above, Attorney Adler was representing Cleo 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 Rule 3.3(a)(3), Adler now has a duty to “take reasonable remedial measures, including if necessary, disclosure to the tribunal.” Id. When Rule 3.3 is triggered, candor to the tribunal trumps confidentiality, so “B” is incorrect. See Rule 3.3(c). There is no exception or consideration of the harm to the client as a result of the disclosure. 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 concluded when 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 in
which Attorney Anderson had represented the plaintiff. The case involved a
difficult fact issue of causation and a difficult issue of law.
After the case was under advisement for several weeks, Anderson heard rumors
that Judge Butler was having difficulty determining the issue of factual causation
and was uncertain about the applicable law. Immediately upon hearing these
rumors, Anderson telephoned Judge Butler, told the Judge that Anderson would
like to reopen the case for additional evidence and briefing by the parties.
Thereafter, Judge Butler reopened the case for further testimony and requested
briefing from both parties.
Was it proper for Anderson to communicate with Judge Butler?
a. Yes, because both parties were given full opportunity to present their views on the issues in the case.
b. Yes, because Attorney Anderson did not make any suggestion as to how Judge Butler should decide the matter.
c. No, because Attorney Anderson communicated with Judge Butler on a pending matter without advising opposing counsel.
d. No, because Attorney Anderson caused Judge Butler to reopen a case that had 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 “communicate ex parte with [a judge] during the proceeding unless authorized to do so by law or court order.” Rule 3.5(b). There are no exceptions to this Rule. Accordingly, A & B are both incorrect. “D” gives the wrong rationale; it doesn’t matter if the ex parte communication has 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 and
I know that a driver cannot see cars backing out of
driveways as the one did in this case. I believe that my
client 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 deceive the court.
b. Yes, because the rules of evidence are very liberal when the trial is before a judge without a jury.
c. No, because Attorney Abrams asserted his personal knowledge of facts in issue.
d. No, if there is no other evidence in the record about the facts asserted by Attorney Abrams.
Answer: C (Rule 3.4(e)).
Explanation: Another litigation “shall not.” Under Rule 3.4(e), a lawyer shall not “assert personal knowledge of facts in issue except when testifying as a witness.” The only exception to this Rule is if the lawyer himself is a witness. “A,” “B,” and “D” do not state 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 why
Client’s contractor license should not be revoked for violation of agency
regulations. 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 in
conduct constituting grounds for revocation of Client’s license as a
II. “The next step in the administrative process is the administrative hearing; if Agency is successful, we will appeal, and Agency still cannot revoke Client’s license until a court affirms the finding for Agency.”
III. “Client needs witnesses who are aware of the incidents that are the subject of 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 have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” This Rule applies broadly to “adjudicative proceedings,” which would include an agency hearing. Rule 3.6(b), however, provides a list of permissible statements:
(1) the claim, offense or defense involved and, except when prohibited by law, 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 information necessary thereto.
Statement I is permissible under paragraph (1). Statement II is permissible under paragraph (4). Statement III is permissible under paragraph (5). Accordingly, “D” is the correct 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 Service
regulation that probably affects the trust provisions in a will she prepared for
Tammy Testratrix two years ago. Attorney Able has not represented Tammy
Testratrix since she drew the will.
Is Attorney Able subject to discipline if she calls Testratrix and advises her of the
new IRS ruling and the need to revise the will?
a. Yes, if Attorney Able has any reason to believe that Tammy Testratrix has another lawyer.
b. Yes, because Attorney Able would be soliciting legal business from a person who is not a current client.
c. No, provided Attorney Able does not thereafter prepare a new will for Tammy Testratrix.
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 provides two exceptions: “unless the person contacted (1) is a lawyer or (2) has a family, close personal, 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 the
advertisement, a professional actor says: “Do you need a lawyer? Call Attorney
Anderson – her telephone number is area code 555-555-5555. Her fees might be
lower than you think.”
Attorney Anderson approved the prerecorded advertisement and is keeping in her
office files a copy of the recording of the actual transmission and a record of
when each transmission was made.
Is the advertisement proper?
b. No, unless Attorney’s fees are lower than those generally charged in the area where 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 misleading communication 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 Model Rules do not prohibit professional actors, though some state rules do. Remember, the MPRE 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 in
which the court has held that the Fourteenth Amendment to the United States
Constitution does not guarantee due process protection to state prison inmates
who are disciplined by prison authorities for violating the prison’s rules of
conduct. Judge Johnson is now a candidate for election to a vacancy on the state
supreme court. She is vigorously opposed by several organizations concerned
with the conditions under which prisoners are incarcerated in the state’s prisons.
Judge Johnson is scheduled to be interviewed on television and has been informed
that questions will be asked of her concerning those decisions and her attitude on
the 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 are appropriate matters for legislative consideration.”
II. “In my opinion, incarceration for the commission of a crime carries with it a loss of civil liberties in prison discipline proceedings.”
III. “I am convinced I was right in those cases and will make the same decision 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 or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.” Option “III” expressly makes a “pledge” on how Judge Johnson will vote in future cases. Option “II” likewise commits Judge Johnson’s vote – the issue is 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 such proceedings. Option “I” mirrors the comments by Justice Scalia at the Pledge Rally. Nothing in the fact pattern indicates 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 district
attorney’s office during the time that an investigation of Defendant Davidson was
being conducted by that office. Attorney Andy took no part in the investigation
and had no knowledge of the facts other than those disclosed in the press. Two
months ago, Andy left the D.A.’s office and formed a partnership with Attorney
Last week, Davidson was indicted for offenses allegedly disclosed by the prior
investigation. 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 office while the investigation of Defendant Davidson was being conducted.
b. Yes, unless the district attorney’s office is promptly notified and consents to the representation.
c. No, unless Attorney Andy participates in the representation or shares in the fee.
d. No, because Attorney Andy had no responsibility for or knowledge of the facts of the investigation of Defendant Davidson.
Explanation: This is a government conflicts problem. Under Rule 1.11(a), a former government lawyer shall not represent a client in a matter in which the lawyer “participated personally and substantially” while a government lawyer. Here, Attorney Andy did not personally and substantially participate in the investigation of Defendant Davidson. Andy “took no part in the investigation.” Accordingly, Andy does not have any 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 an
outspoken and effective opponent of the racial segregation policies of South
Africa. As part of its worldwide tour, South Africa’s national soccer team
scheduled a soccer match with a team in this country. Several civil rights groups
have applied to Judge Jones for an order enjoining the playing of the proposed
match. The matter is now pending. Only legal issues are presented. Judge Jones,
after painstaking consideration, has privately concluded that he cannot decide the
legal questions without bias against the representatives of the South African
government. 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 on the 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 Judge Jones.
Explanation: Under Canon 3(e)(1)(a), a judge “shall disqualify himself or herself” where the judge’s impartiality might reasonably be questioned, including where “the judge has a personal bias or prejudice concerning a party.” Judge Jones has determined that he does have 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’s employment contract. The case was settled without suit being filed. The proceeds of the settlement were paid directly to Polly, who subsequently paid Alice in full for Alice’s fees and expenses. Thereafter, Alice did no other work for Polly. Polly is now being audited by the Internal Revenue Service. The IRS has asked Attorney Alice for details of the settlement, including the amount claimed for each item of damage and the amounts paid for the items. Attorney Alice reported the 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 to Polly.
Answer: C (Rule 1.9(c)(2), Rule 1.6)
Explanation: This question addresses confidentiality and former clients. Lawyers owe a duty of confidentiality to former clients. Rule 1.9(c)(2). So, “B” is just wrong. The question then is whether Attorney Alice may disclose under one of the confidentiality exceptions. “A” and “D” do not accurately state an exception to confidentiality. Accordingly, “C” is the correct answer – the client refuses to give consent to the disclosure, so mum’s the word!
NOTE: The IRS could subpoena the information. The subpoena itself would not remove Alice’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 and ordered Alice to disclose, Alice could rely on the “law or court order” exception to confidentiality under Rule 1.6(b)(6).
2. Attorney Azur represented Buzz Buyer in a real estate transaction. Due to Azur’s
negligence in drafting the agreement of sale, Buzz was required to pay for a
survey that should have been paid by Sally Seller, the other party to the
transaction. Attorney Azur fully disclosed this negligence to Buzz and Buzz
suggested that he would be satisfied if Attorney Azur simply reimbursed him for
the entire cost of the survey.
Although Buzz might have recovered additional damages if he had filed a
malpractice action, Attorney Azur reasonably believed that the proposed
settlement was fair to Buzz. To forestall a malpractice action, Attorney Azur
readily agreed to make the reimbursement. He drafted a settlement agreement
and both he and Buzz executed it.
Was Attorney Azur’s conduct proper?
a. Yes, if Attorney Azur advised Buzz in writing that Buzz should seek independent legal representation before deciding to enter into the settlement agreement.
b. Yes, because Attorney Azur reasonably believed that the proposed settlement was fair to Buzz.
c. No, because Attorney Azur settled a case involving liability for malpractice while the matter was still ongoing.
d. No, unless Buzz was separately represented in negotiating and finalizing the settlement 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 an unrepresented client (or former client) unless that person is advised in writing to seek independent legal counsel and given the opportunity to seek counsel. “D” is incorrect because 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 contract
suit concerning the construction of a house. Big Builder also has a petition to
rezone a Big Builder property pending before the zoning commission. Attorney
Billings represents Big Builder in the zoning matter.
Nancy Neighbor, who owns property adjoining Big Builder’s property, has asked
Ace to represent her in opposition to Big Builder’s zoning petition. Nancy knows
that 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 an administrative proceeding.
c. No, because Attorney Ace is currently representing Big Builder in the contract action.
d. No, if there is a possibility that both matters will be appealed to the same court.
Answer: C (Rule 1.7, cmt. 6)
Explanation: Use the Concurrent Conflict Steps. This is direct adversity. The language of the Rule states “the representation of one client will be directly adverse to another client.” Rule 1.7(a)(1). The Rule does not require that the lawyer be representing both clients – just that the representation pits one client against another. Direct adversity also does not require commonality. It doesn’t matter that the matters are unrelated – just a situation that pits one client against another client. Ace represents Builder in the contract action. 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 feel betrayed if he just showed up and saw Ace opposing the petition. We also arguably have a risk of material limit here. Think about the work Ace will do for Nancy – he will have to 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 as not to offend Big Builder. In either case, it’s clearly a concurrent conflict. The hypo does not state that either party has given consent. (Always read the problem carefully). So, even assuming this is a consentable conflict, the representation is barred because Attorney Ace has not gotten informed 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 matter against a person the lawyer represents in some other matter, even if the matters are wholly unrelated.” “D” is wrong because appeal to the same court is irrelevant under concurrent conflicts analysis.
4. Adam, Bob, and Carlos were indicted for robbing a gas station. Adam and Bob
went together to ask Attorney Abelson to represent them in their criminal defense.
Attorney Abelson interviewed Adam and Bob separately, where they each told
Abelson that Carlos committed the robbery while Adam and Bob waited in
Carlos’ car outside, that Carlos told them he was going to get some cigarettes, and
that they each were unaware of Carlos’ plan to rob the gas station. Attorney
Abelson agreed to represent both Adam and Bob.
A week before trial, Adam told Attorney Abelson that he wanted to plead out in
exchange for testifying that Bob had loaned Carlos the gun that Carlos used in the
robbery. Adam also said that he and Bob had shared with Carlos in the proceeds
of 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 Adam and Bob presented a substantial risk of material limit, albeit consentable because their stories were consistent. Adam’s new story, however, changes this consentable conflict to a non-consentable conflict. As comment 23 explains, a “conflict may exist by reason of substantial discrepancy in the parties’ testimony.” Attorney Abelson cannot competently and diligently represent Adam, and at the same time, competently defend Bob. Think functionally – Attorney Abelson would have to vigorously cross-examine one client (Adam) in order to defend the other client (Bob). Accordingly, continued representation of either Bob or Adam results in a violation of Rule 1.7 (A lawyer shall not represent a client of the representation involved a concurrent conflict of interest). This creates a mandatory 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 withdraw from both Adam and Bob. See also Rule 1.7, cmt. 29.
5. Attorney Adams is representing Paula Plaintiff in a paternity suit against Danny
Defendant. Both Paula and Danny are well-known public figures, and the suit has
attracted much publicity. Attorney Adams has been billing Paula Plaintiff at an
agreed hourly fee for his services. Recently, Paula told Adams:
“I’m going broke paying you. Why don’t you let me assign
you all media rights to books, movies, or television
programs based on my suit as full payment for all services
you will render me between now and the conclusion of the
Attorney Adams replied:
“I’ll consider it, but first you should seek independent
advice about whether such an arrangement is in your own
best interests. Why don’t you do so and call me next
Is Attorney Adams subject to discipline if he agrees to Paula Plaintiff’s offer?
a. Yes, because the amount received by Attorney Adams would be contingent on the receipts from the sale of media rights.
b. Yes, because Attorney Adams has not concluded the representation of Paula 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 the agreement.
Answer: B (Rule 1.8(d))
Explanation: This is a personal conflict. Under Rule 1.8(d), “prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.” The exception here is “prior to the conclusion of 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 the
court as counsel for Defendant David, an indigent defendant charged with a
felony. After consulting with David and attempting for two days to prepare the
case for trial, Alice became convinced that she lacked the knowledge and
experience to represent David effectively.
Which of the following would be proper for Attorney Alice?
I. Request permission of the court to withdraw from representing Defendant David because Attorney Alice knows that she is not competent to handle the case.
II. Request the court to appoint experienced co-counsel and grant a continuance 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. “A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer established competence in the field in question.” MR 1.1 cmt. 2. “II” presents the option of association with an experienced attorney. Alice, of course, could request withdrawal under MR 1.16(a), though as we discussed in class, the court may not grant the request. So, “I” is proper. “III”, however, is not a proper option. “III” essentially asks whether a client can consent to a lack of competence. The answer is no. Consent is not 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 a
jurisdiction where there is an increased penalty for a second such offense, asked
Attorney Ackerman to represent him in his criminal defense. Dennis told
Ackerman that his current driver’s license had been obtained under an assumed
name because his prior license had been suspended for driving while intoxicated.
Dennis asked Ackerman not to disclose his true name during the course of the
representation and told Ackerman that, if called as a witness, he would give his
assumed name. Attorney Ackerman informed Dennis that, to properly defend the
case, 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 under an assumed name.
c. No, because Attorney Ackerman’s knowledge of Dennis’ true name was obtained 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] evidence that the lawyer knows to be false.” By calling Dennis to testify and soliciting the false testimony about his name, Ackerman was offering evidence that he knew to be false. The real question is what the attorney should do next. But, in MPRE world, all that exists is the fact pattern given. So answer based on what you’ve been told. “C” is not correct because candor to the court trumps the duty of confidentiality. “B” is also incorrect; even if Dennis committed a felony when he used the assumed name, that is a past act and Ackerman did not assist in that crime. So, even under B, confidentiality would apply BUT FOR the fact that the lawyer is offering the false evidence to a tribunal. “D” is incorrect; the materiality of the evidence is not relevant. Accordingly, the correct answer is “A.”
3. Attorney Able is employed by Carl Client, a fugitive from justice under
indictment for armed robbery. Attorney Able, after thorough legal research and
investigation of the facts furnished by Carl, reasonably believes that the
indictment is fatally defective and should be dismissed as a matter of law. Able
advised Carl of his opinion and urged Carl to surrender. Carl told Able that he
would not surrender.
Attorney Able informed the district attorney that he represented Carl and that he
counseled Carl to surrender, but that Carl refused to follow his advice. Attorney
Able has not advised Client on how to avoid arrest and prosecution and does not
know 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 and prosecution.
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…in conduct that the lawyer knows is criminal or fraudulent” and “discuss[ing] the legal consequences of any proposed course of conduct with the client. Comment 9 further explains “there is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the mean by which a crime or fraud might be committed.” Here, Able has counseled Carl to surrender. He is not counseling Carl to avoid prosecution and hide. Accordingly, “C” is the correct answer.
4. Attorney Able serves on a bar association committee established to counsel and
rehabilitate lawyers who suffer from substance abuse. The day before Able was
to 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 and
was afraid he had committed criminal offenses in his banking activities as a result
of his addiction. Bill asked Able to represent him. Able agreed, but explained
that Able could do little for two weeks and would consult with Bill immediately
upon Able’s return. While on the fishing trip, Chris, an accountant who knew that
Able represented Bill, told Able that Chris had been retained by the trust
department of Bank, a commercial bank, to audit several substantial trust accounts
in which Bank and Bill are co-trustees. Chris also told Able that the audit
furnished incontrovertible proof that Bill had embezzled more than $100,000
from 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 of Bill’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 is mandatory. Two mandatory disclosure situations are: (1) candor to the tribunal (Rule 3.3) and (2) disclosure of material facts where necessary to avoid assisting a crime or fraud by a client but only if disclosure falls under one of the exceptions to confidentiality 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 not used to further that crime, so Rule 1.6(b)(2)-(3) do not allow disclosure. Confidentiality covers all information learned about a client regardless of source. Where Able learned the information or the fact that the information may become public is irrelevant to the duty 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 Attorney
Ann. In the course of representation, Carl told Ann that Carl had previously
killed two other persons in homicides completely unrelated to the murder
indictment for which Ann was providing representation. Ann, with Carl’s
consent, made a tape recording of Carl’s confession regarding the unrelated
homicides. At Ann’s request, Carl also drew a map on which he designated the
remote location of the graves of the victims of the unrelated killings. Those
bodies 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 the
authorities her knowledge of the two prior murders and the locations of the bodies
of the victims?
a. Yes, because as an officer of the court, Attorney Ann must disclose any knowledge she has, whether privileged or not, concerning the commission of prior crimes by Client Carl.
b. Yes, because Attorney Ann is impeding the state’s access to significant evidence.
c. No, because Attorney Ann did not represent or advise Client Carl with respect to the prior crimes.
d. No, because the information was obtained by Attorney Ann in the course of representation.
Answer: D (Rule 1.6)
Explanation: This is another confidentiality question. Rule 3.4(a) applies to physical evidence, not client communications. Remember our two scenarios – client gives lawyer evidence or during investigation of the case, lawyer finds evidence. Neither scenario is implicated here, and “B” is incorrect. “D” correctly states the lawyer’s duty of confidentiality. (This question parallels the Belge case).
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