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LawInformedAI 23

Unlike defamation cases, which use a subjective test for intent, disciplinary cases for violations of Rule 8.2 use an objective test to assess the lawyer's mental state as to whether the lawyer knew the statement was false or recklessly disregarded its falsity.

MPRE

Which of the following is true regarding Model Rule 8.2?

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 a judicial office, a seat on the county court. She drafted, signed, and mailed a fundraising letter in her own name to local voters announcing her candidacy and asking for campaign contributions. The fundraising letter was typical, would normally have been legal if the attorneywere running for the legislature or an executive branch office. The state’s code of judicial conduct, however, forbid judges from engaging in direct fundraising. The state bar disciplinary authority brought a grievance against the attorney for violating the judicial code. The attorney objected that she was not yet a judge, but was merely seeking judicial office, and the code itself purports only to regulate the conduct of judges. In other words, she contends the judicial code does not apply to lawyers. Is the attorney correct?

A lawyer speculated to a reporter that a judge was "not being honest about the reasons why he committed [a defendant] to the Department of Corrections”

MPRE

Which of the following statements, made publicly by an attorney, would violate Model Rule 8.2?

A lawyer’s statement implying the judge must have been thinking primarily about the political ramifications of his ruling.

MPRE

Which of the following statements, made publicly by an attorney, would be impermissible under Model Rule 8.2?

Yes, the partner’s lack of fitness has evidenced itself through a pattern of conductthat makes clear the lawyer is not meeting her obligations under the Model Rules.

MPRE

An attorney worked with a partner who developed a chronic debilitating medical condition. Eventually, the condition materially impaired the partner’s ability to practice law, but the partner could not cope with giving up on her career, and she kept practicing. She began to miss court deadlines, to forget to make certain filings to complete transactions, and not to follow through to perform agreed-upon tasks. Under Model Rule 1.16, the partner had a duty to decline or withdraw from representation for clients, at least for the more challenging tasks. On the other hand, up to now no clients had suffered serious prejudice to their legal interests or claims because of these mistakes. Does the attorney who observes these developments have a duty to report her partner for misconduct under Rule 8.3?

No, if a lawyer knows of professional misconduct of another licensed lawyer, even a non-practicing lawyer, must report it where it raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer.

MPRE

An attorney practiced as in-house counsel within Conglomerate Corporation. She learned of serious ethical misconduct there by a fellow employee who was also a licensed lawyer, but who was employed by the Conglomerate in a nonlegal position as a technical writer. Conglomerate does not have any liability or legal responsibility for the employee’s misconduct, so the attorney is not approaching it as a liability concern for her corporate client. Would it be permissible for the attorney to refrain from reporting the employee’s misconduct to the bar?

No, if a lawyer knows of professional misconduct of another licensed lawyer, even a non-practicing lawyer, must report it where it raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer.

MPRE

A law professor has a tenured faculty position at her institution. She learns of serious ethical misconduct by another law professor on her faculty who is a licensed lawyer in that state, but who engages exclusively in law teaching. The professor who learned of the problem believes she has no duty to report her colleague to the bar, as neither of them are practicing law, though both have law licenses. Is she correct?

Yes, because a lawyer who knows of a violation of the Rules that raises serious questions about the other attorney’s honesty must report it to the state disciplinary authority.

MPRE

An attorney discovers that a partner at his own firm has violated the Rules of Professional Conduct by failing to disclose adverse binding precedent to a tribunal, and by depositing client funds into his own bank account instead of a client trust account. Does the attorney have a duty to report the partner from his own firm to the state bar disciplinary authority?

Yes, because the duty to report misconduct depends upon the seriousness of the potential offense and not the quantum of evidence of which the lawyer is aware.

MPRE

An attorney discovers that another lawyer has been stealing clients’ funds, but he cannot prove it, as he learned about it from another party who was involved and who has since disappeared. He has some evidence, but not enough to prove that the other lawyer stole the clients’ funds. When he confronted the other lawyer, the other lawyer admitted it privately but said he would deny it if there was any attempt to expose the matter. Does the attorney who knows about the violation, but was unlikely to be able to prove it, have a duty to report the violation to the state disciplinary authority?

Yes, because these comments can constitute sexual harassment and could be prejudicial to the administration of justice.

MPRE

An attorney represented criminal defendants, and he received court appointments for indigent defendants. Some of the court appointments he received were female clients. The attorney had a crude sense of humor and progressive views about sexuality, and he often made crude sexual jokes to his female clients, complimented them on their bodies, and halfjokingly made sexual advances or requested sexual favors. The clients normally brushed off these comments, even though they later reported that they felt uncomfortable. None of the clients complained to the court or filed charges with the police for harassment. Could the attorney be subject to disciple and face suspension for these comments and jokes?

Yes, because the texts constitute sexual harassment of the victim.

MPRE

A prosecutor was bringing charges against a defendant charged with serious domestic violence. When he met the defendant’s victim-girlfriend at the courthouse, she volunteered personal information to the prosecutor in addition to recounting the details of the incident – she explained that she had now had no boyfriend, that she was a struggling single mother, and that she had moved back in with her own parents. The prosecutor and the victim exchanged phone numbers, and he subsequently sent the victim several text messages, the first saying he wished the victim was not a “client” of his office, because “she would be a cool person to know.” The next day, he texted her asking, “Are you the kind of girl that likes secret contact with an older married elected DA ... the riskier the better? Or do you want to stop right now before we have issues?” Two days later, he texted again, telling her that she was “pretty” and “beautiful.” Then he added: “I'm the attorney. I have the $350,000 house. I have the 6-figure career. You may be the tall, young, hot nymph, but I am the prize! Start convincing! I would not expect you to be the other woman. I would want you to be so hot and treat me so well that you'd be THE woman. R U that good?” Could the prosecutor be subject to suspension of his license for these texts?

Yes, because this is discrimination based on national origin.

MPRE

An attorney represented a small business owner in litigation against a former employee, who was a Canadian immigrant. During the bench trial, the attorney cross-examined the former employee on the witness stand, and after two of her answers turned to the judge and asked, “Are you going to believe an alien or a U.S. Citizen?” Could the attorney be subject to suspension for these comments?

Yes, because discrimination against persons based on their source of income or acceptance of free or low-cost legal services would be examples of discrimination based on socioeconomic status.

MPRE

An attorney represented a father at a child support modification hearing before a judge. During the hearing, the attorney made repeated disparaging references to the facts that the mother was indigent and was receiving legal services at no charge. Could the attorney be subject to a public reprimand for these comments?

Yes, the fact that the respondent has not been criminally charged or convicted of this offense is not important for purposes of lawyer discipline.

MPRE

An attorney settled a legal malpractice claim by agreeing to make monthly payments to the former client for five years, which would add up to the full settlement amount. The attorney put forth his car as security for the obligation. After making a few of the monthly payments, the attorney left the jurisdiction with his car, leaving no forwarding address, so the former client (who was now a holder of the security interest in the car) could not locate the attorney or the car for more than one year. The state criminal code provides that it is a class 5 felony to conceal property in which there is a security interest. The attorney never faced criminal charges or arrest, but the state bar received a complaint about the matter and commenced disbarment proceedings against the attorney. Can the attorney face disbarment over a crime for which there were never any charges filed?

No, lawyers may implement initiatives aimed at recruiting, hiring, retaining, and advancing diverse employees without violating the Model Rules.

MPRE

Big Firm engages in aggressive affirmative action in its hiring. It runs ads soliciting applications from minorities and women, and even though they sometimes interview nonminority applicants, they have decided internally to hire only women and minorities for the next five years. Currently, anti-discrimination laws would not require such a practice. Has the firm violated the MRPC?

Yes, the rules prohibiting discrimination and harassment by lawyers not preclude legitimate advice or advocacy the lawyer provides to clients who are openly engaging in such conduct.

MPRE

An attorney owns his own law practice, and he represents clients if he believes in their cause. He regularly defends racists and hate groups against criminal charges and lawsuits, because he shares their philosophy and identifies with their racist views. Is it permissible for the attorney to advocate on behalf of racists and hate groups in litigation, if he supports their cause on a personal level?

Yes, because it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty.

MPRE

An attorney faced prosecution for failing to file tax returns over a five-year period. The attorney worked for a legal aid clinic and never charged clients any legal fees, as the clinic provided free representation to the indigent. The attorney received a modest salary from the legal aid clinic, the funds for which came from the state’s IOLTA program and from a federal Legal Services Corporation (LSC) grant. Could the attorney face suspension of his license to practice law?

No, because offenses concerning personal morality, such as bigamy and comparable offenses, have no specific connection to fitness for the practice of law.

MPRE

An attorney was an immigrant from a country that permits polygamy – men can have up to four wives. The attorney had two wives, which his religion permitted, as did the laws of his homeland. Nevertheless, his multiple marriages constituted bigamy in the American jurisdiction where he practiced law, and eventually a court convicted him of bigamy and imposed a fine. Could the attorney be subject to professional discipline for committing this illegal act?

Yes, because it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

MPRE

After practicing for two years, an attorney enrolled in an LL.M. program at a local law school, taking night classes. During his second semester, the attorney faced academic discipline for plagiarism in a seminar paper; the school permitted him to graduate, but he received a failing grade in the class and had to make up the credits with another course. As the attorney already has a license to practice law in the jurisdiction, could he be subject to discipline if the state disciplinary authorities learned of the plagiarism?

Yes, because it is professional misconduct for a lawyer in the course of representing a client to say things that manifest bias or prejudice based upon race or national origin.

MPRE

While cross-examining a Hispanic witness during a trial, a defense attorney grew frustrated at the witnesses’ evasive answers, and finally asked the witness if “his people” or others “in his community” regularly lie under oath on the witness stand. The prosecutor immediately objected, and the judge sustained the objection, so the attorney withdrew the question. The witness then stated that he did not feel offended by the question because he understood that the lawyer was simply ignorant and relying on stereotypes. Three of the jurors were also Hispanic. Could the attorney be subject to discipline for this question?

No, the rules that prohibit harassment and discrimination by lawyers do not limit the ability of a lawyer to accept, decline or withdraw from a representation.

MPRE

Big Firm handles employee litigation, including workplace harassment suits. Nevertheless, the managing partners at Big Firm have decided they will not take on clients with claims based on same-sex harassment, because they believe the law is still developing and juries return unpredictable verdicts in such cases. Has the firm violated the MRPC?

Yes, because it is professional misconduct for a lawyer to assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

MPRE

A judge asks the two lawyers in a case to help him conduct some first-hand investigation of the facts. At the judge’s request, the plaintiff’s lawyer and the defendant’s lawyer together drive the judge to the location where the accident occurred that became the subject of the litigation and allowed the judge to take measurements and photographs of the scene from different angles. They also accompanied the judge to interview several witnesses at their homes, off the record. Both lawyers felt awkward about this, but they were afraid to contradict or confront the judge, out of respect for the judicial office. Could the lawyers be subject to discipline for this conduct?

No, because a lawyer may be subject to the disciplinary authority of two jurisdictions for the same conduct and may receive different sanctions in each state.

MPRE

An attorney had a license to practice law in two jurisdictions – his home state where he lived and had his primary office, and a neighboring state where he represented several clients each year. The attorney committed serious professional misconduct in his home state and received a public reprimand from the state disciplinary authorities. All the conduct took place in his home state, the client resided in the state, and the representation took place entirely within his home state. The lawyer’s conduct would have violated the rules in either of the jurisdictions where he had a license to practice law, because it involved commingling client funds with his own money, and the states mostly had identical rules concerning this activity. After the attorney received a public reprimand in his home state, where the misconduct occurred, the state bar disciplinary authority in the neighboring state (where he also practiced) then commenced disciplinary proceedings against him as well. In the end, the neighboring state bar suspended his license for six months in that state, a much more severe sanction than the public reprimand he received in his home state, where the misconduct in fact occurred. The attorneyclaims that the neighboring state bar has no jurisdiction over conduct that occurred entirely outside of the state. He also objects that the second punishment raises double jeopardy concerns. Is the attorney correct?

Yes, the state bar should apply the rules of the jurisdiction in which the lawyer’s conduct occurred.

MPRE

An attorney practices law in two adjacent states, as he has a license to practice in each. He lives near the border and can easily serve clients in each jurisdiction. The two states have different rules about attorney disclosures of confidential client information - one state requires disclosures of client confidences whenever necessary to save a third party from death or serious bodily injury, while the other state forbids disclosures even under these circumstances. The attorney did indeed disclose confidential client information to save someone’s life (the client was planning a murder and the attorney notified the authorities and warned the potential victim), but this occurred in the state that forbids such disclosures under these circumstances. The client files a grievance against the attorney in both states, and both state bars commence disciplinary proceedings over the same incident. The state bar of the other state, which would have required disclosure in this situation under its own rules, nevertheless reprimands the attorney for making the disclosure in violation of the rules in the state where the incident occurred. The attorney objects that the state cannot impose a sanction on him for conduct that the state’s rules would have required. Is the state bar correct?

No, because whenever a lawyer's conduct relates to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits.

MPRE

An attorney was representing a client in a probate matter. The representation mostly occurred within the attorney’s home state, where the client also lived. One asset of the probated estate, however, was an account receivable from a debtor in a neighboring state; the matter was already the subject of pending contract litigation in that state. The attorney filed a pro hac vice appearance in the neighboring state, and he traveled there to represent his client in the contract matter, which was ancillary to the probate matter in his home state. During the proceedings, the lawyer committed an act that constituted a violation of the ethical rules in his home state, but not in the neighboring state where he was appearing in a proceeding; the states had different rules in this regard. Could the attorney be subject to discipline in his home state for violating its rules before a tribunal in the neighboring state?

Yes, attorneys may be subject to the disciplinary authority of two jurisdictions for the same conduct and may receive different sanctions in each state.

MPRE

After graduation from law school, an attorney had taken and passed the bar exam in two neighboring states, and she then had a license to practice law in each state. Her primary office was in her home state where he lived, but she also represented a few clients every year in the neighboring state. Seven years into her career, the attorney committed serious professional misconduct in her home state, and she received a public reprimand from the state disciplinary authorities. The actions that led to her disciplinary reprimand occurred entirely in her home state. The lawyer’s conduct would have violated the rules in either of the jurisdictions where she had a license to practice law, because it involved commingling client funds with her own money, and the states mostly had identical rules concerning this activity. Several months after she received her reprimand in her home state, the disciplinary authority in the neighboring state commenced disciplinary proceedings against her as well. In the end, the neighboring state bar suspended her from the practice of law for one year in that state, a much more severe sanction than the public reprimand she had received in her home state, where the misconduct in fact occurred. The attorney appealed this suspension, claiming that the neighboring state bar had no jurisdiction over conduct that occurred entirely outside of its own borders. She also contends that the second punishment raises double jeopardy concerns. Did the state bar in the neighboring state indeed have the legal authority to suspend her license there, if the alleged misconduct occurred entirely in the attorney’s home state, and she had already received a punishment for it?

No, because their trade name includes a geographical name without express statements that they are not a public agency or subdivision of government.

MPRE

Three attorneys open a new firm (a partnership) together. They drafted the partnership agreement themselves, without hiring another lawyer to represent them, and none of them gave informed consent, confirmed in writing, to the conflicts of interest that might arise as a result of drafting their own partnership agreement and trying to represent their own interests at the same time. The partners decided to call the firm “City of Houston Litigation Center,” named after the city where they practice. Their advertising, brochures, and signage contain no disclaimers disavowing any connection with the Houston municipal government or with the Houston City Attorney’s Office, which is a department of the municipal government. Are the actions of the attorneys described here proper, according to the Model Rules of Professional Conduct?

Yes, because lawyers must not misrepresent their partnership with others or other organizations.

MPRE

An attorney outsources complicated legal research to a firm that exclusively provides background legal research for lawyers. Her newest corporate client is a nationwide business with branches operating in all fifty states, so the corporate client needs information about its legal responsibilities regarding a certain issue in every state – a state-by-state survey. The attorney calls herself a sole practitioner. Could the attorney be subject to discipline for failing to inform the corporate client that she plans to outsource the 50-state survey to a research firm?

Yes, because the attorney’s statements were not false or misleading and the letter was an appropriate announcement of the opening of her new firm and her intent to specialize in certain areas of law.

MPRE

An attorney recently earned her Juris Doctor degree from a prestigious law school and easily passed the state bar exam, gaining admission to the bar in her home state. She worked for three years for a legal aid clinic that provided free legal services for indigent clients. At the end of her third year at the clinic, the attorney decided to start her own firm, representing primarily low-income clients who were ineligible for free services at the legal aid clinic, but who also rarely could afford the fees of most attorneys. As soon as she ended her employment at the legal aid clinic, she sent a certified letter to most of the lawyers in her geographic area describing her experience and explaining that she was starting her own firm and intended to specialize in low-dollar consumer protection cases, simple divorces, adoptions, name changes, and landlord-tenant disputes. The letter concluded by offering to handle such cases for other lawyers if the other lawyers did not want to invest their time on such low-dollar matters. Were the attorney’s actions proper?

No, because the statement is true.

MPRE

Attorney McLemore grew up in a family that spoke the Witchita language in the home. Her law practice advertisements prominently stated that she spoke Witchita, and that she can represent Witchita-speaking clients. Unfortunately, Attorney McLemore was the last known native speaker of the Witchita language. Was it improper for Attorney McLemore to include this language ability in her advertisements?

Yes, because it is not misleading, and a lawyer or law firm may also use a distinctive website address or comparable professional designation.

MPRE

Attorney Stevenson’s law firm is simply “The Law Offices of Attorney Stevenson, Esq.” Attorney Stevenson specializes in courtroom litigation. His website address is www.mytrialattorney.com. He selected this domain name and registered it so that he could use it for his law firm’s website. Is this website address/domain name proper for Attorney Stevenson’s law firm?

Yes, a lawyer may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer, assuming clients are aware, and the relationship is not exclusive.

MPRE

A certain attorney made an informal agreement with Physician that they would refer clients to each other when the situation seemed appropriate. They did not pay each other any money for referrals, but the relationship was explicitly reciprocal – the attorney referred patients who needed medical examinations to Physician, and when Physician had patients needing legal representation, he referred them to the attorney. The relationship was not explicitly exclusive – each was free to refer clients to others – but it happened that neither had similar reciprocal relationships with anyone else. They always inform their clients when making such referrals that they have a reciprocal relationship. Is such an arrangement proper?

Yes, the Model Rules permit a lawyer to give nominal gifts, such as an item that might be a holiday gift item, in appreciation to a person for referring a prospective client.

MPRE

An attorney received a client referral by email from a friend who worked as a nurse in a nearby emergency room. The client called the attorney’s office the same day that the attorney received her friend’s email about this potential client. The representation of this new client yielded a favorable outcome, with a generous damages award for the client and substantial fees for the attorney. In appreciation for the referral, the attorney sent her friend a fancy fruit basket that cost around $150, with a card thanking the friend for the lucrative referral. Was it proper for the attorney to give such a gift to a nonlawyer for referring a client to her?

Yes, the Model Rules prohibit gifts offered or given in consideration of any promise, agreement or understanding that such a gift would be forthcoming or that referrals would be made or encouraged in the future.

MPRE

An attorney received a client referral by email from a friend who worked as a nurse in a nearby emergency room. The client called the attorney’s office the same day that the attorney received her friend’s email about this potential client. The representation of this new client yielded a favorable outcome, with a generous damages award for the client and substantial fees for the attorney. In appreciation for the referral, the attorney sent her friend a collectible Star Wars statue (plastic figurine) worth about $20, knowing that the friend avidly collected Star Wars statues. Accompanying the figurine was a thank you card expressing appreciation and promising to send Star Wars collectible figurines every time the friend referred a client to the attorney. Did the attorney act improperly in this instance?

Yes, because it does not include the name and office address of at least one lawyer or law firm responsible for its content.

MPRE

An attorney made and distributed bumper stickers advertising for his firm that simply provided a catchy phone number: 1-800LAWYER-1. The phone number rolled over to the attorney’s office phone. The bumper stickers included no other information. Could the attorney be subject to discipline for such an advertisement?

No, because the Supreme Court has held that such statements are merely “potentially misleading” and that it would violate the First Amendment for states to prohibit such statements completely.

MPRE

An attorney identified himself on his letterhead as a “Certified Trial Specialist by the National Board of Trial Advocacy.” The attorney’s state has no lawyer certification program of its own, besides admission to the bar. Is it inherently misleading, and therefore improper, for the attorney to list a certification if it did not come from an organization that an appropriate state authority has authorized?

No, because a lawyer may not agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer, if the relationship is exclusive.

MPRE

An attorney made an informal agreement with Physician that they would refer clients to each other when the situation seemed appropriate. They did not pay each other any money for referrals, but the relationship was explicitly reciprocal – the attorney referred patients who needed medical examinations to Physician, and when Physician had patients needing legal representation, he referred them to the attorney. The relationship was explicitly exclusive – each agreed not to refer clients to others – but it happened that neither had similar reciprocal relationships with anyone else anyway. They always inform their clients when making such referrals that they have a reciprocal relationship. Is such an arrangement proper?

Yes, because the attorney provides something of value to Blogger in exchange for recommending his services.

MPRE

A certain attorney is a friend of Blogger, who operates a successful local blog about events, news, and gossip about their city. Blogger includes posts about local judges and well-known lawyers. The attorney has a secret agreement with Blogger. The attorney passes along tips to Blogger in the form of courthouse gossip regarding local lawyers and judges, or even about big cases. Blogger, in turn, covers the attorney's successful cases in glowing terms and recommends the attorney to his readers. Blogger's website is so successful that he earns $50,000 or so in advertising revenue from the site. The attorney occasionally purchases a small, inexpensive advertisement on the site, which merely gives the attorney's name, address, phone number, and areas of practice. Could the attorney be subject to discipline?

No, because a lawyer shall not state or imply that a lawyer is a certified specialist in a specific field of law without being a certified specialist by an official certifying organization in that state, and without including the name of the certifying organization in the advertisement.

MPRE

In his advertisements, an attorney, who practices in California, states, “CERTIFIED SPECIALIST IN CALIFORNIA LAW.” The attorney is referring to the fact that he passed the California Bar Exam, not to any other official certification beyond admission to the California bar. According to the Model Rules of Professional Conduct, is such a statement proper in a lawyer’s advertisement?

No, because lawyers have a First Amendment right to use verbiage that is accurate and descriptive in their advertisements, assuming the statements are not misleading.

MPRE

An attorney describes his areas of practice in his advertisements as “real estate” and “personal injury,” but his state bar requires that lawyers use the less descriptive terms “property law” and “tort law” instead. Could the attorney be subject to discipline for using these more descriptive terms instead of the verbiage prescribed by the state bar?

Yes, the Supreme Court has held that state bars cannot prohibit lawyers form describing their years of experience with certain types of cases, assuming the information is truthful.

MPRE

In his advertisements and firm brochures, an attorney describes his many years of experience litigating in a specific area of commercial real estate litigation, without claiming to be a specialist or an expert. He does not mention any official certification. Is it permissible for the attorney to boast of his years of experience practicing in a specific area, even though some readers might infer from this that he is an expert or a certified specialist?

Yes, if after sending a letter or other communication as permitted by the Rules, the lawyer receives no response, any further effort to communicate with the recipient of the communication may violate the provisions of Rules.

MPRE

An attorney sends a solicitation letter to a prospective client. The recipient of the letter opens it and reads it, but the person does not respond. The attorney then sends a follow-up letter to the prospective client. Could the attorney be subject to discipline for sending the second letter?

Yes, because the target of the solicitation has made known to the lawyer a desire not to receive such solicitations.

MPRE

After a bizarre accident that received heavy media coverage, the victims took the unusual step of sending written notices to every plaintiff’s firm in the area stating that the victims did not want to hear from any lawyers about the matter. The attorney received the notice and promptly forgot about it, because he had not yet seen any of the media coverage about the accident. Two weeks later, the attorney decided to catch up on the latest news, and he read an article online about the bizarre incident. He sent a letter to the victims expressing condolences for their suffering and offering to provide legal services if they decided to file a claim over the incident. The victims read the letter, changed their minds, and agreed to have the attorney represent them. A lawyer at another plaintiff’s firm, who had also received the notice from the victims, learned that the attorney was representing the victims. He made some inquiries and discovered how the attorney had found his new clients. The lawyer filed a grievance against the attorney with the state disciplinary authorities. Should the attorney be subject to discipline for the way in which he offered to represent the victims?

Yes, given the coercion and duress inherent in the client's incarceration, using the promise of securing the client's release from custody as an inducement to engage the lawyer would be improper.

MPRE

An attorney specializes in criminal defense work. His advertising, signage, and firm brochures offer a service that other lawyers in his city do not provide – the attorney promises to post bail or bond for any client who cannot afford the amount of his bail or bond. Could the attorney be subject to discipline for such an advertisement offer?

No, because the attorney is calling individuals who routinely use for business purposes the type of legal services offered by the lawyer.

MPRE

An attorney spends about one hour per week, on Monday mornings, calling local small business proprietors who routinely hire lawyers for lease and contract issues, and offers over the phone to provide legal services to them for a competitive (that is, low) fee. Does this activity by the attorney violate the Model Rules?

Yes, because the recipient of the solicitation has a family relationship with the lawyer.

MPRE

Attorney Stevenson’s sister is a dentist. Attorney Stevenson telephones his sister and explains that his firm is not doing well, that he needs more cases, and asks his sister to use him as her lawyer for any malpractice actions she faces or any collection actions against patients who do not pay their bills. Attorney Stevenson’s sister finds this request annoying and makes no promises, but she agrees to keep it in mind. Was it proper for Attorney Stevenson attorney to make such a telephone solicitation?

Yes, because a lawyer shall not accept a government legal engagement or an appointment by a judge if the lawyer makes a political contribution or solicits political contributions for the purpose of obtaining that type of legal engagement or appointment.

MPRE

An attorney solicits campaign contributions on behalf of an elected judge who is running for reelection. The judge wins reelection and shows his gratitude to the attorney by frequently appointing him to represent indigent defendants at the state’s expense. The attorney engaged in the solicitation of contributions for the judge’s reelection campaign because he hoped to receive such appointments. The fees from the appointments are disappointing, though, and the attorney later realizes that the fees earned from these appointments were not equal to the time the attorney spent soliciting the contributions. Could the attorney be subject to discipline for accepting these appointments?

No, because the lawyer’s motivation was a sincere political or personal support for the judge’s candidacy, not a design to receive court appointments.

MPRE

An attorney made substantial financial contributions to the reelection campaign of an elected judge. The judge won reelection and showed his gratitude to the attorney by frequently appointing him to represent indigent defendants at the state’s expense. The attorney made the donations not because he hoped to receive such appointments, but because he honestly believed that the judge was the best candidate for the position. The attorney especially admired the fact that the judge had attended Harvard Law School and that the judge was an active member of the Federalist Society.Could the attorney be subject to discipline for accepting these appointments?

Yes, because contributions that in the aggregate are substantial in relation to other contributions by lawyers or law firms, made for the benefit of an official in a position to influence award of a government legal engagement, and followed by an award of the legal engagement to the contributing or soliciting lawyer or the lawyer's firm would support an inference that the purpose of the contributions was to obtain the engagement

MPRE

An attorney made substantial financial contributions to the reelection campaign of an elected judge. The judge won reelection and showed his gratitude to the attorney by frequently appointing him to represent indigent defendants at the state’s expense. The attorney claims that he made the donations not because he hoped to receive such appointments, but because he honestly believed that the judge was the best candidate for the position, though he could not explain why. In addition, it turned out that taken together, the attorney gave more than every other lawyer or law firm in the judge’s district. Could the attorney be subject to discipline for accepting these appointments?

No, because the term "government legal engagement" does not include mostly uncompensated services.

MPRE

An attorney made substantial financial contributions to the reelection campaign of an elected judge. The judge won reelection, and he showed his gratitude to the attorney by frequently appointing him to serve as referee or mediator in situations where the attorney received no compensation except reimbursement for travel expenses. The attorney made the donations because he hoped to receive such appointments, but he received no fees as a result. Could the attorney be subject to discipline for accepting these appointments?

No, because a lawyer shall exercise independent professional judgment, and the insurer’s litigation management guidelines in this instance materially impair the lawyer’s professional judgment.

MPRE

An insurance company retained an attorney to represent one of its policyholders (i.e., an insured) against a lawsuit. The insurance company that hired the attorney requires its retained counsel to follow its own litigation management guidelines, designed to monitor the fees and costs of the lawyers the insurer retains. The litigation management guidelines include the requirement of a third-party audit of legal bills. Although the guidelines usually serve the interests of both the insured and the insurer by keeping litigation costs low and expediting the resolution of the case, in this instance the attorney finds that the guidelines require tactical moves that are adverse to the insured’s interests. The insurer claims that the insured impliedly consented to the guidelines by agreeing contractually in the insurance policy to “cooperate” during litigation. The insurance company hired the attorney for the case. Should the attorney comply with the insurer’s litigation management guidelines?

It would be permissible for the attorney to urge his own client to come forward and confess to this other murder to save the innocent person accused of it, even though such advice would be contrary to his own client’s legal interests.

MPRE

An attorney represented a criminal defendant charged with murder. During their consultations, the client informed the attorney that he had committed another murder, but that someone else – an innocent bystander – was standing trial for that crime. The attorney was aware of this other case, as it had received media coverage, and realized that an innocent person would potentially go to jail for many years, or even face the death penalty, for the crime his own client had committed. Which of the following is true, regarding the attorney’s ethical obligations in this situation?

The attorney violated his ethical duty to the client by providing purely technical legal advice that would be unhelpful to a nonlawyer.

MPRE

An attorney represented a client who had an explosive temper. The representation concerned multimillion-dollar litigation, and the attorney received notice that the judge in the case had refused to qualify the attorney’s expert witness to testify at trial. Without the expert, the client’s case was unlikely to prevail. Faced with the daunting prospect of delivering this unwelcome news to the client, the attorney emailed the client and explained the setback in highly technical terms, citing the relevant sections of the Federal Rules of Civil Procedure, local court rules, precedential cases, and the Code of Judicial Conduct. He also used archaic legal terms in several places. A nonlawyer would have been unlikely to understand the conclusion – that the disqualification of the expert meant the client would lose the case and should withdraw or settle immediately. Based on the Model Rules, which of the following is true?

The attorney failed to conduct the investigation described in the opinion letter and therefore violated his duty of care.

MPRE

A certain client applied to for a loan from a Big Bank based on a security interest in farm machinery that the client claims to own. Big Bank required that all borrowers provide an opinion letter at the time of closing from the borrower’s lawyer. The legal opinion letter was to verify, based on a check of courthouse records, that the borrower's title to the machinery carried no encumbrances, such as recorded liens. The client asked his attorney to provide the required opinion, and the attorney produced the letter addressed to Big Bank. Unfortunately, the attorney had in fact made no effort to verify the facts stated by checking courthouse records, instead relying entirely on his client's statements concerning the state of title of the property. If the attorney had conducted the investigation described in the opinion letter, he would have seen that the public records indicated several liens superior to Big Bank’s security interest. Which of the following is correct, given these facts?

The attorney did not violate a duty of care to Big Bank by relying as stated in the opinion letter solely on the preliminary title report and not conducting any other investigation.

MPRE

A certain client applied for a bank loan from Big Bank based on a security interest in farm land and farm machinery. Big Bank required an opinion letter at the time of closing from the client’s attorney, vouching for the deed of trust executed by the client that would give Big Bank a mortgage lien on the property, prior to any other recorded liens. The client’s attorney provided the opinion letter. It states that the attorney has neither physically inspected the property nor investigated the state of the record title with respect to the mortgaged property, relying instead on the preliminary title report of a title-insurance company that there are no other liens on the property and that the client has clear title to the property. Unknown to the attorney, a third party had already acquired adverse possession rights in the property. The third party has also incurred unpaid bills that resulted in mechanics' liens on the property. All this occurred after the date of the preliminary title report. Which of the following is correct, based on these facts?

The attorney should start with the Chief Financial Officer, then take the matter to up the chain of command in the organization if necessary, eventually bringing the matter to the board of directors if nobody in management will address the problem.

MPRE

A recent law school graduate obtained her law license and spent several months searching for a job. Eventually, she went to work for a medium-sized corporation as in-house counsel. The company had only recently grown to the size that it could afford to keep legal counsel on staff, as opposed to hiring outside firms to handle legal matters when they arose. This meant the newly-licensed attorney was the first lawyer to work as in-house counsel at this corporation. After seven months, the attorney discovered that the Chief Financial Officer had falsified the corporation’s quarterly earnings report to help boost the firm’s share price. Both the attorney and the CFO received stock options every quarter as part of their compensation plan. Realizing that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission, and the attorney feared that the corporation would eventually face severe regulatory fines or civil liability for false earning reports. What should the attorney do in this situation?

Yes, because if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part, or the relevant branch of government may be the client for purposes of the Rules of Professional Conduct.

MPRE

An attorney served as general counsel for a municipal auditing and enforcement bureau, which monitored the internal affairs and expenditures of the municipal government. The attorney discovered that the head of the bureau engaged in selective enforcement and self-dealing, and he suspected that bribery had occurred in a few instances. The attorney’sconfrontation of the bureau head proved futile, so the attorney then needed to proceed up the chain of command. Can the attorney, now serving as general counsel for a government bureau, report wrongdoing to anyone higher within that municipality?

The attorney should proceed as the lawyer deems necessary to assure that the organization's highest authority knows about the circumstances of the lawyer's discharge.

MPRE

An attorney worked for a corporation as in-house counsel. The attorney discovered that the Chief Financial Officer falsified the corporation’s quarterly earnings report to prop up the firm’s share price, as the CFO’s compensation is partly in stock options. The attorney knows that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission, and the misrepresentations will eventually result in severe regulatory fines or civil liability for the corporation. The attorney believes, with good reason, that the violation will result in substantial injury to the organization. The Chief Financial Officer hired the attorney, and he directly supervises the attorney in the organizational chain of command. The attorney confronted the Chief Financial Officer, but this proved unfruitful, and then the Chief Financial Officer discharged the attorney. What should the attorney do in this situation?

No, it would certainly be proper for the attorney to represent Investors’ Club, and in doing so she must proceed in the manner directed.

MPRE

The chief financial officer of Investors’ Club, a private investment trust, is under suspicion for converting $100,000 of Investors’ Club's assets for personal use. The other responsible corporate officers of Investors’ Club, acting on the trust’s behalf, retain an attorney to recover the money from the chief financial officer. At the same time, they direct the attorney not to reveal the loss, or file a lawsuit, until she has first exhausted other collection efforts. Given these restrictions, would it be a conflict of interest for the attorney to proceed with the representation?

Yes, the interests of Investors’ Club and the chief financial officer are so adverse that even informed consent of both would not permit their common representation by Lawyer in the matter.

MPRE

The chief financial officer of Investors’ Club, a private investment trust, is under suspicion for converting $100,000 of Investors’ Club's assets for personal use. The other responsible corporate officers of Investors’ Club, acting on the trust’s behalf, retain an attorney to recover the money from the chief financial officer. At the same time, they direct the attorney not to reveal the loss, or file a lawsuit, until she has first exhausted other collection efforts. Although the matter is not yet in litigation, would it be improper for the attorney to proceed with dual representation, of both theorganization and the chief financial officer in this matter, if both consent?

Yes, a lawyer must take care not to convey communications regarding the client’s position, which otherwise would not count as statements of fact, in language that converts them, even inadvertently, into false factual representations.

MPRE

An attorney had struggled all through law school with the volume of reading and memorization, and then she had struggled to establish a successful law practice because everything took so much time and acumen. She complained constantly about her workload and maintained a blog where she espoused strong views about foreign policy, national security, wine, and exercise. Conglomerate Corporation hired the attorney to represent it in a lawsuit in which it was the defendant. During early settlement negotiations, the attorney told the plaintiff that the Board of Directors for her client, Conglomerate, had formally disapproved any settlement for more than fifty thousand dollars, even though Conglomerate’s Board of Directors had in fact authorized a much higher settlement amount. Was it improper for the attorney to make such untruthful statements during settlement negotiations?

No, such remarks are merely posturing or puffing, and are not statements upon which parties would justifiably rely, so they are not false statements of material fact.

MPRE

An attorney represented Conglomerate Corporation in negotiating with an office supplies company for a bulk discount on regular monthly purchases. When the supplier refused to go any lower, the attorney said threateningly that he could pick up the phone at any time and get three of their competitors to beat the supplier’s current price. The attorney had no reason to think this – he was just bluffing, hoping to leverage the supplier into a lower price. Under the Model Rules, was it impermissible for the attorney to make this false statement to a third party?

Yes, because the Model Rules do not establish an automatic bar to lawyers initiating contact with the opposing parties’ experts.

MPRE

A litigation attorney from Big Firm was representing Conglomerate Corporation as the defendant in a civil matter. The attorney learned that the opposing party had hired an expert witness to support their claims, so she decided to initiate an ex parte contact with the expert witness retained to testify for the opposing party, without first obtaining permission from the opposing counsel. The expert witness was hesitant at first to talk to the attorney, because opposing counsel had asked the expert not to discuss the case with the inquiring lawyer. Nevertheless, the attorney persisted and eventually persuaded the witness to tell him some of his ideas and conclusions so far about the case. Was it proper for the attorney to convey to the opposing party’s expert witness that he must speak to her?

No, the same standards that apply to lawyers engaged in negotiations also apply to them in the context of caucused mediation, because parties cannot waive, even by mutual consent, the protections against false statements of material fact during negotiations.

MPRE

A litigation attorney worked for several years for the Office of the Attorney General in his state, but then left to work for Big Firm. At Big Firm, the attorney exclusively handled litigation for Conglomerate Corporation, one of Big Firm’s most important clients. Conglomerate Corporation had no litigation with the state government, so Big Firm made no effort to screen the attorney from any cases, though it would conduct customary conflict checks. In one case, the attorney was defending Conglomerate Corporation in a personal injury lawsuit over an accident with one of its delivery truck drivers. The parties agreed to use caucused mediation. In caucused mediation, the mediator meets privately with the parties and their counsel. These meetings or caucuses are confidential, and the mediator controls the flow of information among the parties and their counsel, as agreed by the parties. The attorney customarily starts negotiations or regular mediations by downplaying Conglomerate’s willingness to compromise. In the alternative, the attorney might overstate, or sometimes strategically understate, the strengths or weaknesses of Conglomerate’s litigation position. Are such statements, which might otherwise be permissible in regular mediation or direct negotiations, improper during a caucused mediation?

No, a lawyer shall not knowingly make a false statement of material fact to a third person.

MPRE

An attorney was representing Conglomerate Corporation, a large employer, in labor negotiations with the employee’s union. The union had demanded, among other things, better coverage for birth control and abortions under the employee health insurance plan. The attorney told the union’s lawyers that adding this benefit would cost the company an additional $142.37 per employee per quarter, but the attorney knew that it would in fact cost only $30 per employee. The attorney had learned over the years that using overly-specific numbers instead of round numbers was a more effective strategy for bluffing. Under the Model Rules, was it permissible for the attorney to make this false statement to a third party?

No, a lawyer shall not knowingly make a false statement of material fact or law to a third person.

MPRE

A prosecutor was conducting a plea negotiation with a defendant and his lawyer. During the plea negotiation, the prosecutor told the defendant and his counsel that there was an eyewitness to the alleged crime, who could identify the defendant as the perpetrator. This was not the case – the prosecutor was just bluffing, and the defense counsel suspected it was not true and decided to wait on deciding anything until he could depose or interview the witness himself. Was it permissible for the prosecutor to bluff like this during a plea negotiation, if no harm resulted?

No, a lawyer engaged in settlement negotiations of a pending personal injury lawsuit in which the client was the plaintiff cannot conceal the client’s death; she must promptly notify opposing counsel and the court of that material fact.

MPRE

An attorney had struggled all through law school with the sheer amount of reading and memorization, and then she had struggled to establish a successful law practice because everything took so much time and acumen. She advertised heavily as a personal injury plaintiff’s lawyer, and she attracted new clients through deal-of-the-day promotions that she ran through a service called PleaseTryThis. Her advertising was so prevalent that when police stopped her vehicle for speeding violations, the officers would immediately recognize her as the lawyer from the advertisements, and sometimes this helped her avoid receiving a ticket. One personal injury client presented an unusually complicated problem. After filing pleadings in the case, while the proceedings were still in the discovery phase, the client died in a car accident, unrelated to the previous injuries that were the basis of the lawsuit. During subsequent settlement negotiations with a corporate defendant, Giant Company, the attorney did not disclose that her client had already died, but continued negotiations as if the client was still alive and had authorized her to accept or reject certain offers. Was it permissible for the attorney to delay disclosure of the client’s death during the initial stages of settlement negotiations?

Yes, during an ex parte contact, a lawyer may not convey the message, directly or indirectly, that the witness must speak to the lawyer.

MPRE

A litigation attorney from Big Firm was representing Conglomerate Corporation as the defendant in a civil matter. The attorney learned that the opposing party had hired an expert witness to support their claims, so she decided to initiate an ex parte contact with the expert witness retained to testify for the opposing party, without first obtaining permission from the opposing counsel. The expert witness was hesitant at first to talk to the attorney, because opposing counsel had asked the expert not to discuss the case with the inquiring lawyer. Frustrated, the attorney told the witness that he had to speak to the attorney, under the requirement of law, and that the witness would otherwise face contempt of court charges. She was just bluffing; as with any other witness not under subpoena, an expert witness may choose not to discuss the case with the lawyer. Was it improper for the attorney to convey to the opposing party’s expert witness that he must speak to her?

No, because a lawyer may electronically record a conversation without the knowledge of the other party to the conversation without violating the Model Rules, if the recording is not otherwise illegal.

MPRE

An attorney surreptitiously recorded a conversation with a potential witness without the other person’s knowledge or consent. State law permits recording of conversations when at least one of the participants consents, which would include the attorney in this case. The potential witness learned about the recording later and was upset, because she would not have consented to the recording of the conversation, or at least would have been more judicious about her comments. Even if the attorney did not violate state or federal laws by recording this conversation, could the attorney be subject to discipline for failing to disclose a material fact to a third person?

No, lawyer who records a conversation without the consent of a party to that conversation may not represent that he is not recording the conversation.

MPRE

An attorney surreptitiously recorded a conversation with a potential witness without the other person’s knowledge or consent. The potential witness asked the attorney at the beginning of the conversation if the attorney was recording it, and the attorney assured her that he was not, even though he was in fact recording it. State law permits recording of conversations when at least one of the participants consents, which would include the attorney in this case. The potential witness learned about the recording later and was upset, because she would not have consented to the recording of the conversation, or at least would have been more judicious about her comments. Assuming the attorney did not violate state or federal laws by recording this conversation, were the attorney’s actions proper, given these facts?

No, a lawyer may not make a communication prohibited by the Rules through the acts of another, such as the friend in this case.

MPRE

An attorney knows that his opposing counsel has a reputation for refusing to settle cases and forcing lawsuits to go to trial, to impose the full costs of litigation on the opposing party. Cultivating this reputation serves as a deterrent to other would-be litigants against opposing counsel’s clients. To avoid a rebuff by opposing counsel, the attorney finds a close friend of the opposing party, and he asks the close friend to communicate an informal settlement offer to the opposing party directly, bypassing the other lawyer. The opposing party is delighted to hear the offer and readily agrees to settle the case. Opposing counsel is furious and reports the attorney for misconduct. The attorney claims that he did not communicate with opposing counsels’ client. Instead, the friend did, so the prohibitions on contact with other parties would not apply. Is the attorney correct?

No, consent of the company’s attorney is always necessary for communication with a present constituent of the organization who supervises, directs, or regularly consults with the organization’s attorney concerning the matter.

MPRE

In anticipation of trial over workplace discrimination, a plaintiff’s attorney contacts several current managers of the defendant corporation and interviews them about the day-to-day operations of the company and the chain of command for addressing personnel complaints. These managers supervise employees, address interpersonal problems between workers, filed complaints, and consult with the firm’s in-house counsel about personnel matters that seem serious. The attorney does this without permission from the defendant’s attorney. Was this proper?

Yes, as the prohibition on communications with a represented person only applies in circumstances where the attorney knows that the person is in fact represented in the matter under discussion.

MPRE

An attorney lived in State A, but she had a license to practice in adjacent State B, where she worked for a law firm. Some of her clients also lived in State A, but they had sought legal representation in State B because that is where they worked or owned property. A business owner who lived and worked in State B hired the attorney to help enforce a non-compete agreement against a former employee at their technology firm. According to the client, a rumor started going around just this past week that the former employee had either started his own business nearby or was working for a nearby competitor, either of which, if true, could violate the non-compete agreement. The employee left the client’s company on bad terms ten days ago. The former employee lived in State A. The client provided a copy of the non-compete agreement, which the former employee had signed many years before on his first day of work. The human resources director at the client’s business told the attorney that she assumed the former employee would have forgotten about the agreement, or that he was unlikely to be aware that he was violating it. The attorney decided that the first step would be to call the former employee and ask whether he has found another job yet or has started his own business. The attorney assumed that the former employee would not have retained counsel yet to challenge the non-compete agreement, given the HR director’s comments about him, and how recently the events unfolded. The former employee answered the phone, explained that he was starting his own rival company, and that the non-compete agreement was invalid under state law. When the attorney asked why he thought it would be invalid, the former employee answered that his own lawyer assured him that recent changes in state law made the previous agreement void. They were, in fact, ready to challenge the agreement in court. The attorney asked him to have his own lawyer contact him, so that they could discuss settlement options for the dispute, and then ended the call. Did the attorney acted properly?

Yes, because he was visiting the property owner as a tenant, not as the representative of another party.

MPRE

An attorney was renting law-office space from an individual property owner. At one point, the attorney was late with his rent, and he soon received a letter from another lawyer, who was representing the property owner. The letter directed the attorney to vacate by a certain date. The attorney visited his property owner in person, without the prior consent of the property owner’s lawyer. During the visit, the attorney insisted to the property owner that the lease prohibits the eviction without a one-month grace period. This argument was entirely plausible. Was it proper for the attorney to do this?

No, because one can easily infer from these facts and circumstances that the attorney indeed knew the former employee had representation.

MPRE

A business owner hires an attorney to enforce a non-compete agreement against a former executive at the client’s technology firm. According to the client, a rumor started going around just this past week that the former executive had either started his own business nearby or was consulting for a nearby competitor; if true, either scenario could violate the non-compete agreement. The client explains that the former executive has already asserted that the non-compete agreement is invalid under a recent decision from the state Supreme Court and is filing an action for a declaratory judgment to challenge the non-compete agreement preemptively, though the client is unsure whether his company received proper service yet about the lawsuit. The attorney decides that the first step is to call the former employee and ask him whether he has found another job yet or has started his own business. The former employee answers the phone, explains that he has started his own rival company, and that he believes the non-compete agreement is invalid under state law. The attorney asks him to have his own lawyer contact him so that they can discuss potential settlement for the dispute. Has the attorney acted properly?

No, because attorneys may not communicate with represented persons unless the attorney representing that person permits the attorney to communicate with the represented person.

MPRE

An attorney represents a plaintiff in a civil suit. The defendant also has representation, but he contacts the attorney to negotiate a settlement agreement. The attorney advises the defendant that he cannot discuss the case with the defendant because the defendant has representation by counsel. Defendant faxes the attorney a letter stating that he waives the rule restricting the attorney from communicating with the defendant while the defendant has representation. Upon receipt of the fax, the attorney contacts the defendant and discusses a settlement agreement. Are the attorney’s actions proper?

Yes, because any prosecutor in that situation has reason to believe that the unrepresented defendant received limited-scope legal services on some portions of the case.

MPRE

A state bar pro bono program arranges for lawyers to volunteer at police stations and county lockups to give limited-scope representation to arrestees who plan to proceed pro se, advising them mostly on their pre-trial rights (the right to remain silent, to have court-appointed counsel at trial, and so on). Sometimes these volunteer attorneys accompany arrestees to their arraignments or bond hearings, but then their assistance ends, and the defendant proceeds pro se (without counsel, either by choice or because they are ineligible for court-appointed counsel). The lawyer volunteer program has been going on for a few years, and it has expanded significantly. A local prosecutor receives a case assignment involving a pro se defendant. At the outset of the plea negotiation session, must the prosecutor ask the defendant if he has already received legal advice on a limited basis from a volunteer lawyer, and if so, refrain from further discussions until he has conferred with the other lawyer?

No, an attorney owes no duties or protections, including protections against disclosing information about potential lawsuits, to persons who communicate with attorneys without any expectation of forming a client-attorney relationship.

MPRE

An attorney sees a friend at a high school reunion. The friend asks the attorney for advice about a potential civil lawsuit that the friend is considering hiring an attorney to file. The attorney gives the friend general information about the area of law and about the specific kind of lawsuit an attorney might potentially file for the friend. The friend lives too far away from the attorney for the attorney to handle the case, and the friend is planning to hire another lawyer near his residence to handle the lawsuit. The attorney later talks to his own wife about the friend’s lawsuit. Wife discusses the suit with her own friend. The friend discovers that several people know about his potential suit and is upset, as he believed that the attorney should not have spoken about his potential case to others. Is the attorney subject to discipline?

Yes, when a lawyer contacts any witness, lay or expert, actual or potential, the lawyer must not knowingly leave the witness in ignorance of the lawyer’s relationship to the case that gives occasion to the contact.

MPRE

A litigation attorney from Big Firm was representing Conglomerate Corporation as the defendant in a civil matter. The attorney learned that the opposing party had hired an expert witness to support their claims, so she decided to initiate an ex parte contact with the expert witness retained to testify for the opposing party, without first obtaining permission from the opposing counsel. In fact, opposing counsel had asked the expert not to discuss the case with the inquiring lawyer. The attorney introduced herself by name, but she did not mention that she was a lawyer or that she had any relationship with the case. Instead, she said she was “researching an issue” and that the expert was a well-known specialist on the topic, which was true. The expert was willing to answer her questions because he was unaware that she was opposing counsel in the case. The attorney pressed the expert for specific examples of the issue they were discussing, which led the expert to mention his research related to the current litigation. The expert revealed information to the attorney that was useful for her representation of her client. Could the attorney be subject to discipline for discussing the matter with the expert without discussing her relationship to the case?

No, so long as the unrepresented person understands that the lawyer represents an adverse party and is not representing the person, the lawyer may prepare documents that require the person's signature and explain the lawyer's own view of the meaning of the document or the underlying legal obligations.

MPRE

An inexperienced attorney represented an insurance company in a wrongful-death lawsuit. The plaintiff was the widow of the deceased, acting as the personal representative of the deceased. The widow was a pro se litigant, as she did not have legal representation in the matter. The lawsuit was over the death of her husband. The pro se widow asserted that one of the insurance company's policyholders had negligently caused the husband's death. State law required that settlements of a wrongful death claim by a personal representative must have approval from a tribunal. The widow and the insurance company's claims manager eventually agreed on a settlement amount. The attorney, representing the insurance company, prepared the necessary documents and presented them to the widow for her signature. The widow, knowing that the attorney represented the interests of the insurance company, asked the attorney why the documents were necessary. The attorney responded that to effectuate the settlement, they needed to execute the documents and file them for court approval. This was true. Was the attorney's conduct improper, under the Model Rules?

The attorney must inform the buyer that the attorney represents only Big Bank, and that the buyer should not rely on the attorney toprotect the buyer's interests in the transaction.

MPRE

A highly experienced attorney represented Big Bank as the financer in a home sale. The buyer, that is, the borrower, did not have legal representation in the transaction. Under the terms of the transaction, the buyer was to pay the legal fees of the attorney. The buyer wrote an email to the attorney stating, “I have several questions about legal issues in the house purchase on which you are representing me.” The buyer also had several phone conversations with the attorney in which the buyer made similar statements. What is the attorney's ethical duty in this situation, regarding the buyer?

Notwithstanding a local court order to the contrary, the Model Rules do not independently impose an ethical duty to notify opposing counsel of the receipt of private, potentially privileged e-mail communications between the opposing party and his or her counsel.

MPRE

An experienced attorney regularly represented Conglomerate Corporation as its outside litigation counsel. One of Conglomerate’s employees filed a lawsuit against the company as her employer. Conglomerate instructed its information technologies staff to copy the contents of her workplace computer for useful information in defending the lawsuit, and then Conglomerate’s management provided copies to its outside counsel. Upon review, the attorney for Conglomerate saw that some of the employee's e-mails have the heading “Attorney-Client Confidential Communication.” Under the Model Rules of Professional Conduct, does the attorney for Conglomerate have an ethical duty to notify the employee's lawyer that the employer has accessed this correspondence?

No, if a lawyer records a conversation with no substantial purpose other than to embarrass or burden a third person, the lawyer has violated Rule 4.4.

MPRE

An attorney represented a powerful but controversial politician. A prosecutor was seeking an indictment of the attorney’s client, so the attorney located a young woman who volunteered to befriend the prosecutor at a social event and exchange phone numbers. Then, at the attorney’s request, the young woman would call the prosecutor and engage in lurid sexual conversations over the phone, while the attorney was recording the conversations. The prosecutor was unaware that the attorney and the young woman were recording the conversations, but the laws of that state required the knowledge and consent of only one participant to record a conversation. The attorney then sent the prosecutor a copy of the recordings of the phone conversations, which were very embarrassing to the prosecutor. The attorney did not include any communication with the recordings, such as threats or extortionary demands. Nevertheless, the prosecutor did not want the recording to become public, so he stopped pursuing the indictment of the attorney’s client. Was it permissible for the attorney to record these phone conversations, under these circumstances?

Yes, a lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person.

MPRE

Local police obtained photographs from partygoers, and the photographs showed minors from the local high school consuming beer and engaging in sexual activity at a recent drinking party. The police forwarded the photographs to the local prosecutor, who decided not to pursue criminal charges in the matter for several legal and evidentiary reasons. Instead, in hopes of shocking the minors' parents into dealing with underage drinking, the prosecutor showed them photos of their children drinking and engaging in sexual activity at the party. All the parents saw all the photos, including those of other parents' children drinking, some unclothed and others partially clothed, at the party. Could the prosecutor be subject to discipline for his zealous advocacy against underage drinking?

No, the attorney had an obligation to hold the funds in a separate account from the attorney’s own property.

MPRE

An attorney had included false statements on his application for admission to the bar, but the lies went undetected, so the attorney obtained his license and began to practice law. The nonlawyer employees he hired to work at his firm were aware that he had lied on his bar application, but they did not report this to the state disciplinary authorities. The firm had no legal malpractice insurance, but the attorney neglected to disclose this to some of the firm’s prospective clients. At one point, the attorney represented a seller in a business transaction involving industrial equipment. To complete the transaction, the purchaser sent the attorney a check for the agreed-upon purchase price, with a letter directing the attorney to forward the money to the seller, whom the attorney represented in the matter. The attorney notified his client immediately that the money had come in. The client was traveling at the time and asked the attorney to hold the funds until he returned from his trip. The attorney had only recently launched the firm and did not yet have a client trust account at any banks in the area, so he deposited the check in his own bank account temporarily. As soon as the check cleared, the attorney wrote a check to the client for the full amount, which the client picked up in person. Did the attorney act properly regarding the funds?

Yes, because the attorney did not keep records for a long enough period.

MPRE

An attorney has a busy transactional practice and frequently must handle client funds, either for making commercial purchases, sales, leases, dispute settlements, or other transfers. The attorney faithfully deposits client money in a separate trust account and does not commingle the funds with his own, except that he deposits enough of his own money in the account to cover the monthly bank service charges. The attorney keeps complete, accurate records of all deposits and withdrawals for a full year, after which he destroys the records to preserve client confidentiality. Is the attorney acting improperly?

The attorney must make reasonable efforts to reconstruct documents of intrinsic value for both current and former clients, or to obtain copies of the documents that come from an external source.d) The attorney must promptly notify the opposing party in each clients’ matter about the loss of important documents that might be relevant or material to the other party.

MPRE

A natural disaster struck a certain attorney’s city and destroyed his office, including many documents of intrinsic value belonging to clients. Which of the following would be one of the attorney’s ethical duties as a result?

The attorney need not notify either current or former clients about lost documents that have no intrinsic value.

MPRE

A natural disaster struck a certain attorney’s city and destroyed his office, including many documents of that had no intrinsic value belonging to clients, that serve no useful purpose to the client or former client, or for which there are electronic copies. Which of the following would be one of the attorney’s ethical duties as a result?

The attorney must attempt to reconstruct the records from available sources.

MPRE

A natural disaster struck a certain attorney’s city and destroyed his office, including his records of his client trust accounts. What must the attorney do in response, to satisfy his ethical obligations to keep records of such accounts?

Yes, a lawyer may deposit funds from the client into a trust account and withdraw funds only as billable fees or expenses accrue.

MPRE

An attorney worked for Big Firm for three years, and thereafter he took several of Big Firm’s clients with him to start his own firm. Big Firm had an official unwritten policy that its lawyers should not take Big Firm clients with them when the lawyers left the firm, but the attorney in this case simply ignored this policy. Big Firm threatened litigation over the attorney’s actions, but it did not follow through on the threats. The attorney then advertised on local billboards that he was a former Big Firm lawyer who would provide affordable legal services to working-class clients. A certain new client hired an attorney to represent him in a divorce proceeding and gave the attorney several thousand dollars to cover all legal fees and expenses in the case. The attorney deposited the money in his client trust account, and he explained to the client that he would withdraw money periodically as he earned fees or incurred expenses. Was this arrangement proper?

Yes, because he met with a represented opposing party without opposing counsel being present.

MPRE

An attorney represented a female client, the wife in a marriage-dissolution action. The husband had retained a lawyer at Boutique Firm to represent him. Meeting without either lawyer present, the wife and husband negotiated the outlines of an agreement providing for property division and child support. The wife then brought the husband to the attorney’s office to have the agreement reduced to writing. The attorney welcomed both the wife and the husband and engaged in a discussion of provisions of the agreement with both the husband and wife. Has the attorney violated the Model Rules?

No, because Attorney Stevenson should have deposited the other lawyer’s share of the fees in a trust account, separate from his own funds.

MPRE

Attorney Stevenson, from Tiny Firm, brings in a lawyer from Giant Firm to work on a complex litigation matter, and they agree to share fees. The client receives a single billing covering the fees of both lawyers, even though they work for separate firms. To comply with the Rules of Professional Conduct, the fee division between Attorney Stevenson and the other lawyer is proportionate to the services performed by each lawyer, and the client agreed in writing beforehand to the arrangement, including the share each lawyer would receive. The total fee is reasonable. At the end of the representation, Attorney Stevenson receives the earned fee from the client, including the share that he owes to the other lawyer at Giant Firm. He promptly notifies the other lawyer. Attorney Stevenson deposits the total sum in his firm bank account (its operating account, not a client trust account), and after confirming that the funds are available from the bank, he sends a check to the other lawyer with his share of the fees. Are Attorney Stevenson’s actions proper, as described here?

No, because the Code of Judicial Conduct prohibits judges from conducting online research to gather information about a party or juror in a pending case, even if the research yields no useful information.

MPRE

An experienced litigator became a judge. In her previous litigation practice, she would regularly search online to learn more about the opposing party, opposing counsel, and even jurors. She sometimes found useful information on opposing parties’ websites or on social media. Now serving as a judge, she visits the website of the corporate defendant in one of her cases, to learn more background about the company and its products and pricing. In this instance, the judge did not find any information on the company’s website that seemed useful in understanding the issues in the pending case. The judge did not do any online research about the other party (the plaintiff) in the case. Was the judge’s research proper?

Yes, this violates Rule 2.9(c) of the Code of Judicial Conduct, because the clerk is conducting the research on behalf of the judge.

MPRE

A judicial clerk researched alternative methods of toxic mold remediation in homes having mold problems and wrote a memo about her findings for the judge to consider in a case. The defendant alleged, among other things, that the plaintiff in a toxic mold case before that judge had failed to mitigate damages. Has the judge violated the CJC?

No, because the lawyer must withdraw from the representation of the judge under these circumstances.

MPRE

A trial judge is going through a divorce, and he hired an attorney to represent him. The attorney’s law firm partner is representing another client who is appearing before the same judge in his personal injury lawsuit. The judge and the litigation client both give written informed consent to the representation despite the potential conflicts of interest. Even so, the judge is trying to keep the divorce quiet until after the upcoming elections, because this occurs in a state with elected judges. The judge therefore refuses to disclose to the parties in the personal injury case that counsel for one side is from the same firm as the lawyer representing the judge in his pending divorce. Neither the attorney nor his partner can reveal to opposing counsel in the personal injury case that their firm represents the judge, due to their duty of confidentiality. The judge believes he will be unbiased in the personal injury case, even though he is the client of a partner of one of the lawyers in the case, so the judge does not need to disqualify himself from the case. The Code of Judicial Ethics does require, however, that the judge disclose the representation to the litigants appearing before him, which the judge has refused to do at this time. Can the attorney continue representing the judge in his divorce?

The candidate may discuss his jurisprudence or views on statutory or Constitutional interpretation, but he should not indicate how he would rule on a specific upcoming case.

MPRE

A President appointed an experienced circuit court judge to fill a vacancy on the U.S. Supreme Court. During the Senate confirmation hearings, a committee member asked the candidate if he supported a textualist or originalist approach to interpreting statutes and the Constitution. How should the candidate respond?

The candidate should refuse to commit beforehand to ruling a specific way on any given case.

MPRE

A President appointed an experienced circuit court judge to fill a vacancy on the U.S. Supreme Court. During the Senate confirmation hearings, a committee member asked the candidate if he would overturn Roe v. Wade if he had an opportunity to do so, or if he would uphold Roe v. Wade due to stare decisis. How should the candidate respond?

Yes, if he does not say how he would rule in any specific case, the candidate can discuss his views on legal and political issues.

MPRE

A President appointed an experienced circuit court judge to fill a vacancy on the U.S. Supreme Court. During the Senate confirmation hearings, a committee member asked the candidate about his personal beliefs about abortion. The candidate explained that he thought women had a right to make decisions about their own bodies, and that a fetus is not a person under the law. Was it proper for the candidate to give this answer to the committee?

No, because the judge publicly reported the gift the very next day.

MPRE

An attorney practices personal injury law in a small town. One of the judges who regularly presides over the attorney’s cases is celebrating his twenty-fifth year on the bench, and the judge’s friends and family have planned a banquet honoring the judge for reaching this milestone in his career. The organizers of the event invited many of the lawyers and judges in the area to the event. Many of the invitees are planning to bring a congratulations card or small congratulatory gift to the banquet. The personal injury attorney purchased a $250 silver-encased commemorative watch as a gift for the judge. The attorney presented it at the banquet, and the next day the judge made a public report of the gift. Was it improper for the attorney to give this watch to the judge?

No, because the Code of Judicial Conduct prohibits judges from conducting online research to gather information about a party or juror in a pending case, even if the research yields no useful information.

MPRE

An experienced litigator became a judge. In her previous litigation practice, she would regularly search online to learn more about the opposing party, opposing counsel, and even jurors. She sometimes found useful information on opposing parties’ websites or on social media. Now serving as a judge, she visits the website of the corporate defendant in one of her cases, to learn more background about the company and its products and pricing. In this instance, the judge did not find any information on the company’s website that seemed useful in understanding the issues in the pending case. The judge did not do any online research about the other party (the plaintiff) in the case. Was the judge’s research proper?