PROFESSIONAL

RESPONSIBILITY
2022 - 2023

TABLE OF CONTENTS
INTRODUCTION
COMPREHENSIVE OUTLINE OF THE LAW
REVIEW QUESTIONS AND ANSWERS
PRACTICE EXAMS AND ANALYTICAL ANSWERS
CONVISER MINI REVIEW

PR
Copyright © 2022 by BARBRI, Inc. All rights reserved. No part of this publication may be
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writing from the publisher. Printed in the United States of America.
 TABLE OF CONTENTS

INTRODUCTION

COMPREHENSIVE OUTLINE OF THE LAW . . . . . . . 1

REVIEW QUESTIONS AND ANSWERS . . . . . . . . 179

PRACTICE EXAMS AND ANALYTICAL

ANSWERS . . . . . . . . . . . . . . . . . . . . . . . . .205

CONVISER MINI REVIEW

 PROFESSIONAL RESPONSIBILITY (i)

INTRODUCTION
As you start to prepare for the Multistate Professional Responsibility Examination (“MPRE”),
be aware that the exam is designed to test your ability to apply a set of detailed legal rules—
similar to the legal rules you have learned in other courses in law school. You cannot pass the
exam simply by having good morals and good manners. You must know the rules, and you
must know how to apply them.

The best way to prepare for the exam is to complete all of your course assignments. This will
include reading the outline, watching the lecture, and answering black letter law questions
and practice questions in the online learning platform.

Here’s what you’ll find in this book:

Comprehensive Outline of the Law: This outline not only summarizes all the essential law,
but it also contains many examples to illustrate less obvious points.

Optional Review Questions: These are short-answer questions that test your basic under-
standing of the concepts discussed in the outline. Check your answers against the answers
we have provided, referring back to the pertinent section of the outline if you need more
review of a particular topic.

Practice Exams: You should complete the practice questions in the online learning platform
as assigned so you can get immediate feedback on your performance, but these questions
are also available in this book if you would prefer to practice offline.

Conviser Mini Review: This is a condensed version of the comprehensive outline, and you
should use it as a final refresher before you take the exam.
COMPREHENSIVE
OUTLINE
 PROFESSIONAL RESPONSIBILITY i.

PROFESSIONAL RESPONSIBILITY
TABLE OF CONTENTS

I. REGULATION OF THE LEGAL PROFESSION  . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

A. SOURCES OF REGULATION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1
1. The State   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1
a. Courts   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1
1) Ethics Rules—The American Bar Association (“ABA”) Model
Rules and Judicial Code   . . . . . . . . . . . . . . . . . . . . . . . . . .  1
2) Case Law   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1
3) Rules of Court   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1
b. Bar Associations   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1
c. Congress and State Legislatures   . . . . . . . . . . . . . . . . . . . . . .  2
2. The Federal System   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
a. Courts   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
b. Government Attorneys   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
3. Regulation by Multiple States   . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
B. ADMISSION TO THE PRACTICE OF LAW  . . . . . . . . . . . . . . . . . . . . . . . .  2
1. The Application   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
a. False Statements   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2
b. Failure to Disclose Information   . . . . . . . . . . . . . . . . . . . . . . .  3
2. Character and Fitness—“Good Moral Character”   . . . . . . . . . . . . . . .  3
a. Investigative Procedure   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3
1) Burden of Proof and Duties of Applicant   . . . . . . . . . . . . . .  3
2) Procedural Rights   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4
b. Conduct Relevant to Moral Character   . . . . . . . . . . . . . . . . . . .  4
1) Criminal Conduct   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4
a) “Adolescent Misbehavior” and Civil Disobedience   . . . . .  4
2) Rehabilitation   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4
3) Concealment of Past Conduct Constitutes Moral Turpitude   . .  5
4) Political Activity   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5
3. Citizenship and Residency Are Not Valid Requirements   . . . . . . . . . .  5
C. REGULATION AFTER ADMISSION  . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5
1. What Constitutes Professional Misconduct   . . . . . . . . . . . . . . . . . .  5
a. Violation of the Rules of Professional Conduct   . . . . . . . . . . . . .  5
b. Certain Criminal Acts   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6
c. Dishonesty, Fraud, Deceit, or Misrepresentation   . . . . . . . . . . . .  6
ii. PROFESSIONAL RESPONSIBILITY

d. Conduct Prejudicial to the Administration of Justice   . . . . . . . . .  6

e. Stating or Implying Ability to Improperly Influence Officials   . . . . . 7
f. Assisting a Judge in Violation of Judicial Code   . . . . . . . . . . . . . . 7
g. Harassment or Discrimination in Law Practice  . . . . . . . . . . . . . . 7
1) Permitted Actions  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7
2. Duty to Report Professional Misconduct   . . . . . . . . . . . . . . . . . . . .  7
a. Key Definitions   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8
b. Sanctions for Failure to Report Misconduct   . . . . . . . . . . . . . . .  8
c. Exceptions—Confidential Information and Lawyers’ Assistance
Programs  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8
3. Disciplinary Process   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9
a. Complaint   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9
b. Screening   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9
c. Hearing   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9
1) Due Process Required   . . . . . . . . . . . . . . . . . . . . . . . . . .  9
2) Application of Other Rights   . . . . . . . . . . . . . . . . . . . . . .  9
3) Burden of Proof   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  10
4) Decision and Review   . . . . . . . . . . . . . . . . . . . . . . . . . . .  10
d. Sanctions   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  10
4. Choice of Law in Disciplinary Proceedings   . . . . . . . . . . . . . . . . . .  10
a. Conflicts of Interest—Choice of Law Agreements Permitted   . . . .  11
5. Effect of Sanctions in Other Jurisdictions   . . . . . . . . . . . . . . . . . . .  11
a. Other States   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  11
b. Federal Courts   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  11
6. Disability Proceedings   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  12
D. UNAUTHORIZED PRACTICE AND MULTI-JURISDICTIONAL PRACTICE  . . . .  12
1. Unauthorized Practice by Lawyer   . . . . . . . . . . . . . . . . . . . . . . . .  12
2. Permissible Types of Temporary Multi-Jurisdictional Practice   . . . . .  12
a. Association with Local Lawyer   . . . . . . . . . . . . . . . . . . . . . . .  12
b. Special Permission to Practice in Local Tribunal   . . . . . . . . . . . .  13
c. Mediation or Arbitration Arising Out of Practice in Home State   . .  13
d. Other Temporary Practice Arising Out of Practice in Home State   . .  13
e. Temporary Practice by Foreign Lawyers   . . . . . . . . . . . . . . . . .  14
3. Permissible Types of Permanent Multi-Jurisdictional Practice   . . . . .  14
a. Lawyers Employed by Their Only Client   . . . . . . . . . . . . . . . . .  14
1) Foreign Lawyers Advising on United States Law   . . . . . . . . .  14
b. Legal Services Authorized by Federal or Local Law   . . . . . . . . . .  15
4. Consequences of Multi-Jurisdictional Practice   . . . . . . . . . . . . . . .  15
 PROFESSIONAL RESPONSIBILITY iii.

5. Unauthorized Practice by Nonlawyers   . . . . . . . . . . . . . . . . . . . . .  15

a. General Considerations in Defining “Practice of Law”   . . . . . . . .  15
1) Activities Constituting Law Practice   . . . . . . . . . . . . . . . . .  15
2) Activities Not Constituting Law Practice   . . . . . . . . . . . . . .  16
3) Tax Advice   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  16
b. Consequences of Unauthorized Practice   . . . . . . . . . . . . . . . .  16
c. Delegating Work to Nonlawyer Assistants   . . . . . . . . . . . . . . .  16
d. Training Nonlawyers for Law-Related Work   . . . . . . . . . . . . . . .  16
e. Helping Persons Appear Pro Se   . . . . . . . . . . . . . . . . . . . . . .  17
f. Assisting a Suspended or Disbarred Lawyer   . . . . . . . . . . . . . .  17
E. RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY
LAWYERS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  17
1. Partners’ Duty to Educate and Guide in Ethics Matters   . . . . . . . . . .  17
2. Duties of Direct Supervisor   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  17
3. How Duties Are Fulfilled   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  17
4. Ethical Responsibility for Another Lawyer’s Misconduct   . . . . . . . . .  18
F. RESPONSIBILITIES CONCERNING NONLAWYER ASSISTANCE  . . . . . . . . . . 18
1. Duty to Educate and Guide in Ethics Matters   . . . . . . . . . . . . . . . . .  18
2. Duty of Partners Respecting Nonlawyer Employees   . . . . . . . . . . . .  18
3. Duties of Direct Supervisor Respecting Nonlawyer Employees   . . . . .  19
4. Ethical Responsibility for Nonlawyer’s Misconduct   . . . . . . . . . . . . .  19
G. RESPONSIBILITIES OF A SUBORDINATE LAWYER  . . . . . . . . . . . . . . . . .  19
1. Duties Concerning Clear Ethics Violation   . . . . . . . . . . . . . . . . . . .  19
2. Duties Concerning Debatable Ethics Questions   . . . . . . . . . . . . . . . 20
H. PROFESSIONAL INDEPENDENCE OF A LAWYER  . . . . . . . . . . . . . . . . . .  20
1. Fee Splitting with Nonlawyers and Temporary Lawyers   . . . . . . . . . . 20
a. Death Benefits Permitted   . . . . . . . . . . . . . . . . . . . . . . . . . .  21
b. Compensation and Retirement Plans for Nonlawyer Employees   . .  21
c. Sale of a Law Practice   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  21
d. Sharing Court-Awarded Fee with Nonprofit Organization   . . . . .  21
2. Partnership with Nonlawyer to Practice Law Prohibited   . . . . . . . . .  22
3. Nonlawyer Involvement in Incorporated Firm or Other Association   . . .  22
4. Interference with Lawyer’s Professional Judgment   . . . . . . . . . . . .  22
I. RESTRICTIONS ON RIGHT TO PRACTICE  . . . . . . . . . . . . . . . . . . . . . . .  23
1. Restrictive Partnership and Employment Agreements   . . . . . . . . . .  23
iv. PROFESSIONAL RESPONSIBILITY

2. Restrictive Settlement Agreements for Clients   . . . . . . . . . . . . . . .  23

J. SALE OF A LAW PRACTICE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1. When Sale Permitted   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
a. Selling Lawyer May Practice in Limited Circumstances   . . . . . . .  24
2. Protection of Seller’s Clients After Sale   . . . . . . . . . . . . . . . . . . . . 24
K. LAW-RELATED (ANCILLARY) SERVICES  . . . . . . . . . . . . . . . . . . . . . . . . 24
1. Nonlegal Services and Legal Services Provided Together   . . . . . . . .  25
2. Nonlegal Services Provided by Entity that Is Controlled by the
Lawyer   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  25
3. Providing Nonlegal Services to Clients   . . . . . . . . . . . . . . . . . . . .  25
II. THE CLIENT-LAWYER RELATIONSHIP  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  26
A. NATURE OF THE RELATIONSHIP  . . . . . . . . . . . . . . . . . . . . . . . . . . . .  26
B. CREATING THE LAWYER-CLIENT RELATIONSHIP  . . . . . . . . . . . . . . . . . .  26
1. How Relationship Is Formed  . . . . . . . . . . . . . . . . . . . . . . . . . . . .  26
a. Implied Assent and Reasonable Reliance  . . . . . . . . . . . . . . . .  26
2. Duty to Reject Certain Cases   . . . . . . . . . . . . . . . . . . . . . . . . . . .  27
a. Client’s Motive Is Harassment   . . . . . . . . . . . . . . . . . . . . . . . .  27
b. Unsupportable Factual or Legal Position   . . . . . . . . . . . . . . . .  27
c. Lawyer Not Competent   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  27
d. Strong Personal Feelings   . . . . . . . . . . . . . . . . . . . . . . . . . . .  27
e. Impaired Mental or Physical Condition   . . . . . . . . . . . . . . . . . . 28
3. Duties Owed to Prospective Client   . . . . . . . . . . . . . . . . . . . . . . . 28
4. Ethical Obligation to Accept Unpopular Cases   . . . . . . . . . . . . . . .  28
C. ATTORNEYS’ FEES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. Must Communicate Fee Arrangement to Client   . . . . . . . . . . . . . . . 28
a. Exception—Regularly Represented Client  . . . . . . . . . . . . . . . .  28
2. Discipline for Unreasonable Fee   . . . . . . . . . . . . . . . . . . . . . . . . .  29
a. Factors   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  29
b. Items that May and May Not Be Billed   . . . . . . . . . . . . . . . . . .  29
3. Collecting and Financing Attorneys’ Fees   . . . . . . . . . . . . . . . . . . . 30
a. Payment in Advance   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
b. Property for Services   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  31
c. Cutting Off Services   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  31
d. Credit Arrangements and Security   . . . . . . . . . . . . . . . . . . . .  31
4. Contingent Fees   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  31
 PROFESSIONAL RESPONSIBILITY v.

a. When Contingent Fee Prohibited   . . . . . . . . . . . . . . . . . . . . .  32

1) Criminal Cases   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  32
2) Domestic Relations Cases   . . . . . . . . . . . . . . . . . . . . . . .  32
b. Contingent Fee Must Be Reasonable   . . . . . . . . . . . . . . . . . . .  32
c. Writing Requirement for Contingent Fee Agreements   . . . . . . . .  32
5. Fee Disputes   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  33
a. In General   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  33
b. Remedies   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  33
1) Liens   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  33
2) Retention of Funds in Trust Account   . . . . . . . . . . . . . . . . .  33
3) Arbitration or Mediation   . . . . . . . . . . . . . . . . . . . . . . . .  33
6. Fee Splitting with Other Lawyers   . . . . . . . . . . . . . . . . . . . . . . . .  34
a. Lawyers Within a Firm   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
b. Separation and Retirement Agreements   . . . . . . . . . . . . . . . .  34
c. Certain Splits with Lawyers Outside Firm   . . . . . . . . . . . . . . . . 34
7. True Referral Fees Are Unethical   . . . . . . . . . . . . . . . . . . . . . . . .  35
D. SCOPE AND BOUNDS OF REPRESENTATION  . . . . . . . . . . . . . . . . . . . .  35
1. May Limit Scope of Representation  . . . . . . . . . . . . . . . . . . . . . . . 35
2. Must Not Assist Client in Crime or Fraud  . . . . . . . . . . . . . . . . . . . . 35
a. Telling the Client “No”   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
b. Discussing Proposed Conduct  . . . . . . . . . . . . . . . . . . . . . . .  36
c. Discovering a Client’s Illegal Conduct   . . . . . . . . . . . . . . . . . .  36
3. Decisions to Be Made by Client   . . . . . . . . . . . . . . . . . . . . . . . . .  36
a. Disagreements Between Lawyer and Client   . . . . . . . . . . . . . .  37
4. Lawyer’s Authority to Bind Client  . . . . . . . . . . . . . . . . . . . . . . . .  37
a. Actual Authority—Lawyer’s Belief   . . . . . . . . . . . . . . . . . . . . .  37
b. Apparent Authority—Third Party’s Belief  . . . . . . . . . . . . . . . . .  37
1) How Client Creates Apparent Authority  . . . . . . . . . . . . . . .  37
c. Ratification 
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
d. When Lawyer’s Authority Ends  . . . . . . . . . . . . . . . . . . . . . . .  38
1) Must Notify Third Parties Relying on Authority  . . . . . . . . . . 38
5. Client with Diminished Capacity   . . . . . . . . . . . . . . . . . . . . . . . . . 38
a. Lawyer’s Duties   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
b. Protective Action and Appointment of Guardian   . . . . . . . . . . .  39
6. Emergency Legal Assistance to Nonclient with Seriously Diminished
Capacity   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  39
a. Lawyer’s Duties   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  39
b. No Compensation for Lawyer   . . . . . . . . . . . . . . . . . . . . . . . . 40
vi. PROFESSIONAL RESPONSIBILITY

E. COMMUNICATING WITH THE CLIENT  . . . . . . . . . . . . . . . . . . . . . . . . . 40

1. Matters that Require Informed Consent   . . . . . . . . . . . . . . . . . . . . 40
2. Information About Status of the Matter and Means to Be Used   . . . . . 40
a. Admitting Mistakes  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  40
3. Request for Information   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  41
4. Consultation About Illegal or Unethical Conduct   . . . . . . . . . . . . . .  41
5. Special Circumstances   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  41
6. Withholding Information from Client   . . . . . . . . . . . . . . . . . . . . .  42
a. Court Rule or Order   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  42
F. CONTRACTS CONCERNING CLIENT-LAWYER RELATIONSHIP  . . . . . . . . .  42
1. Contract Not Made at Outset  . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
2. Contract Made After Work Completed  . . . . . . . . . . . . . . . . . . . . . 43
G. TERMINATING THE LAWYER-CLIENT RELATIONSHIP  . . . . . . . . . . . . . . . 43
1. Client Fires Attorney   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
a. Client’s Liability for Fees   . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
b. Contingent Fee Cases   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2. Court Permission to Substitute Attorneys   . . . . . . . . . . . . . . . . . .  44
3. Mandatory Withdrawal   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
a. Disability   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
b. Illegality or Ethical Violation   . . . . . . . . . . . . . . . . . . . . . . . .  44
4. Permissive Withdrawal   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
a. Client Persists in Criminal or Fraudulent Conduct   . . . . . . . . . . . 44
b. Client Has Used Attorney’s Services to Commit Past Crime or
Fraud   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  45
c. Client’s Objective Is Repugnant or Against Lawyer’s Beliefs   . . . . 45
d. Client Breaks Promise to Attorney   . . . . . . . . . . . . . . . . . . . . . 45
e. Financial Hardship for Attorney   . . . . . . . . . . . . . . . . . . . . . .  45
f. Client Will Not Cooperate   . . . . . . . . . . . . . . . . . . . . . . . . . .  45
g. Other Good Cause   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5. Attorney’s Duties Upon Termination of Representation   . . . . . . . . .  45
III. CLIENT CONFIDENTIALITY   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  46
A. GENERAL RULE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
B. RELATIONSHIP BETWEEN ETHICAL DUTY OF CONFIDENTIALITY AND
ATTORNEY-CLIENT PRIVILEGE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
1. Compulsion vs. Gossip   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
 PROFESSIONAL RESPONSIBILITY vii.

2. Kinds of Information Covered   . . . . . . . . . . . . . . . . . . . . . . . . . .  47

3. Disclosure vs. Use   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  47
C. SUMMARY OF ATTORNEY-CLIENT PRIVILEGE  . . . . . . . . . . . . . . . . . . . . 48
1. Basic Rule   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  48
2. Client   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
a. Corporate Clients   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  48
3. Attorney   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4. Communication   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  49
a. Mechanical Details of Relationship   . . . . . . . . . . . . . . . . . . . .  49
b. Preexisting Documents and Things   . . . . . . . . . . . . . . . . . . . .  49
5. “Confidential” Defined   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
a. Presence of Third Party   . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
b. Eavesdroppers   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  51
6. Client Is Holder of Privilege   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  51
a. Waiver of Privilege   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  51
1) Client Puts Legal Services at Issue  . . . . . . . . . . . . . . . . . .  51
b. Lawyer’s Duty to Invoke Privilege   . . . . . . . . . . . . . . . . . . . . .  51
7. Duration of Privilege   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
8. Exceptions to Privilege   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9. Related Doctrine of Work Product Immunity   . . . . . . . . . . . . . . . .  52
D. ETHICAL DUTY OF CONFIDENTIALITY AND ITS EXCEPTIONS  . . . . . . . . . . 52
1. Duty Not Destroyed by Presence of Third Party   . . . . . . . . . . . . . . . 53
2. Exceptions to the Duty of Confidentiality   . . . . . . . . . . . . . . . . . . . 53
a. Client’s Informed Consent   . . . . . . . . . . . . . . . . . . . . . . . . . . 53
b. Implied Authority   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  53
c. Disclosure to Prevent Death or Substantial Bodily Harm   . . . . . .  54
d. Disclosure to Prevent or Mitigate Substantial Financial Harm   . . . 55
e. Dispute Concerning Attorney’s Conduct   . . . . . . . . . . . . . . . .  55
f. Disclosure to Obtain Legal Ethics Advice   . . . . . . . . . . . . . . . .  56
g. Disclosure to Detect and Resolve Conflicts of Interest   . . . . . . .  56
h. Disclosure Required by Law or Court Order   . . . . . . . . . . . . . . .  57
3. Protecting Confidential Information   . . . . . . . . . . . . . . . . . . . . . .  57
IV. CONFLICTS OF INTEREST  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  57
A. THE GENERAL RULES CONCERNING CONFLICTS OF INTEREST  . . . . . . . . .  57
1. Consequences of a Conflict of Interest   . . . . . . . . . . . . . . . . . . . .  58
viii. PROFESSIONAL RESPONSIBILITY

2. Imputed Conflicts of Interest   . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

a. Meaning of “Firm”   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
b. Exceptions to Imputed Disqualification   . . . . . . . . . . . . . . . . . 58
1) Conflict Based on Uniquely Personal Interest of Lawyer   . . . . 58
2) Specific Situations Involving Lawyer’s Former Dealings—
Screening and Notice   . . . . . . . . . . . . . . . . . . . . . . . . . . 59
B. CONFLICTS OF INTEREST—CURRENT CLIENTS  . . . . . . . . . . . . . . . . . . .  59
1. Concurrent Conflicts of Interest   . . . . . . . . . . . . . . . . . . . . . . . . . 59
2. Informed Consent Can Solve Some Conflicts   . . . . . . . . . . . . . . . .  60
a. Consent Must Meet Reasonable Lawyer Standard   . . . . . . . . . .  60
b. Consent Must Be Informed   . . . . . . . . . . . . . . . . . . . . . . . . .  60
c. Consent Must Be Confirmed in Writing   . . . . . . . . . . . . . . . . . . 60
1) Rationale   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  61
d. Must Not Be on Both Sides of Litigation  . . . . . . . . . . . . . . . . . .  61
e. Revocation of Consent   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  61
f. Consent to Future Conflicts   . . . . . . . . . . . . . . . . . . . . . . . . .  61
3. Specific Conflict Situations Concerning “Direct Adversity” Between
Clients’ Interests   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  61
a. Unnamed Members of a Class Do Not Count as Clients   . . . . . . . 63
4. Specific Conflict Situations Concerning “Material Limitation”   . . . . .  63
a. Representing Multiple Clients in the Same Matter  . . . . . . . . . . . 63
1) Co-Parties in Criminal Litigation   . . . . . . . . . . . . . . . . . . . 63
2) Co-Parties in Civil Litigation   . . . . . . . . . . . . . . . . . . . . . . 64
3) Nonlitigation Matters   . . . . . . . . . . . . . . . . . . . . . . . . . . 64
4) Handling Multiple Representation Conflicts  . . . . . . . . . . . . 65
5) Special Problems of Representing More than One Client   . . . 65
a) Confidentiality and Privilege Problems   . . . . . . . . . . . . 66
b. Representing Two Clients with Inconsistent Legal Positions in Two
Unrelated Cases   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  66
c. Conflicts Caused by Lawyer’s Own Interests   . . . . . . . . . . . . . .  67
1) Lawyer’s Financial Interest   . . . . . . . . . . . . . . . . . . . . . . .  67
2) Lawyers Who Are Close Relatives   . . . . . . . . . . . . . . . . . .  67
d. Conflict Between Client’s Interest and Third Person’s Interest   . .  67
e. Conflicts Raised by Liability Insurance   . . . . . . . . . . . . . . . . . . 68
1) Policyholder’s Interests   . . . . . . . . . . . . . . . . . . . . . . . . . 68
2) Insurance Company’s Interests   . . . . . . . . . . . . . . . . . . . . 68
3) Whom Does the Defense Lawyer Represent?   . . . . . . . . . . . 69
4) Conflicts Between Insurance Company and Policyholder   . . .  69
a) Is the Event Covered by the Policy?   . . . . . . . . . . . . . .  69
b) Settlement Within the Policy Limits   . . . . . . . . . . . . . . 69
c) Settlement Controlled by Insurance Company   . . . . . . .  70
 PROFESSIONAL RESPONSIBILITY ix.

d) Unreasonable Limits on Defense Fees and Expenses  . . .  70

C. CONFLICTS OF INTEREST—SPECIFIC RULES FOR CURRENT CLIENTS  . . . . .  71
1. Misuse of Client’s Confidential Information   . . . . . . . . . . . . . . . . .  71
a. Use to Benefit Lawyer or Someone Else   . . . . . . . . . . . . . . . . .  71
b. Possible Civil Liability Even When Client Is Not Disadvantaged   . .  71
2. Business Transactions with Client and Money or Property Interests
Adverse to Client   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  72
a. Statement of the Rule   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  72
b. Outer Limits of the Rule   . . . . . . . . . . . . . . . . . . . . . . . . . . .  72
3. Proprietary Interest in Subject of Litigation   . . . . . . . . . . . . . . . . .  73
a. Contingent Fee Exception   . . . . . . . . . . . . . . . . . . . . . . . . . .  73
b. Attorney’s Lien Exception   . . . . . . . . . . . . . . . . . . . . . . . . . .  73
4. Gifts to Lawyer from Client Who Is Not a Relative   . . . . . . . . . . . . . .  74
a. Soliciting Substantial Gift   . . . . . . . . . . . . . . . . . . . . . . . . . .  74
b. Preparing Legal Instrument that Creates Substantial Gift   . . . . .  74
c. Lucrative Appointments   . . . . . . . . . . . . . . . . . . . . . . . . . . .  75
5. Acquiring Literary or Media Rights Concerning Client’s Case   . . . . . .  75
6. Financial Assistance to Client in Litigation   . . . . . . . . . . . . . . . . . .  75
a. Advancing Litigation Expenses   . . . . . . . . . . . . . . . . . . . . . . .  76
b. Paying Costs and Expenses for Indigent Client   . . . . . . . . . . . . .  76
c. Modest Gifts When Representing Indigent Client Pro Bono  . . . . .  76
d. Other Financial Help Is Prohibited   . . . . . . . . . . . . . . . . . . . . .  76
7. Aggregate Settlement Agreements   . . . . . . . . . . . . . . . . . . . . . .  77
a. Class Action Settlements   . . . . . . . . . . . . . . . . . . . . . . . . . .  77
b. Aggregate Settlement of Criminal Case   . . . . . . . . . . . . . . . . .  77
8. Compensation from Third Person   . . . . . . . . . . . . . . . . . . . . . . . .  78
9. Sexual Relationship Between Lawyer and Client   . . . . . . . . . . . . . .  78
a. No Imputation  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  79
b. Pre-Existing Relationship May Still Cause Conflict  . . . . . . . . . . .  79
D. CONFLICTS INVOLVING FORMER CLIENTS  . . . . . . . . . . . . . . . . . . . . . .  79
1. Continuing Duty of Confidentiality   . . . . . . . . . . . . . . . . . . . . . . .  79
2. Using Confidential Information to Former Client’s Disadvantage   . . .  79
3. Opposing Former Client in Substantially Related Matter   . . . . . . . . . 80
a. Meaning of “Substantially Related” Matter   . . . . . . . . . . . . . . . 80
4. Clients of Former Firm   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  81
5. Disqualification of Lawyer’s New Firm   . . . . . . . . . . . . . . . . . . . . .  81
x. PROFESSIONAL RESPONSIBILITY

a. Notice and Certifications to Former Client   . . . . . . . . . . . . . . . 82

6. Disqualification of Lawyer’s Former Firm   . . . . . . . . . . . . . . . . . . . 82
E. CONFLICTS INVOLVING PROSPECTIVE CLIENTS  . . . . . . . . . . . . . . . . . . 82
1. Lawyer’s Duty Concerning Confidential Information   . . . . . . . . . . .  82
2. Lawyer’s Duty Concerning Conflict of Interest   . . . . . . . . . . . . . . . . 83
3. How to Overcome a Prospective Client Conflict   . . . . . . . . . . . . . .  83
F. CONFLICT RULES FOR CURRENT AND FORMER GOVERNMENT OFFICERS
AND EMPLOYEES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
1. Federal and State Conflict of Interest Laws   . . . . . . . . . . . . . . . . . . 84
2. Private Work Following Government Work on Same Matter   . . . . . . . 84
a. Meaning of the Term “Matter”   . . . . . . . . . . . . . . . . . . . . . . .  84
b. Meaning of “Personally and Substantially”   . . . . . . . . . . . . . . .  85
c. Imputed Disqualification   . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
3. Subsequent Use of Information Gained During Government Service   .  86
a. Imputed Disqualification   . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
4. Current Government Service After Private Practice   . . . . . . . . . . . .  87
a. Ordinary Conflict Rules Apply   . . . . . . . . . . . . . . . . . . . . . . .  87
b. “Personal and Substantial” Rule Also Applies   . . . . . . . . . . . . .  87
c. Negotiating for Private Employment   . . . . . . . . . . . . . . . . . . . 88
G. CONFLICTS INVOLVING FORMER JUDGES, ARBITRATORS, AND THE LIKE  . .  88
1. Switching from Judicial Service to Private Law Practice   . . . . . . . . .  88
2. Screening Can Avoid Imputed Disqualification   . . . . . . . . . . . . . . . 89
3. Law Clerks Negotiating for Private Employment   . . . . . . . . . . . . . . 89
4. Other Adjudicative Officers Negotiating for Private Employment   . . .  89
V. COMPETENCE, MALPRACTICE, AND CIVIL LIABILITY  . . . . . . . . . . . . . . . . . . . .  90
A. COMPETENCE 
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
1. Legal Knowledge and Skill   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
a. Factors in Determining Requisite Skill   . . . . . . . . . . . . . . . . . .  90
b. Becoming Competent Through Preparation   . . . . . . . . . . . . . . 90
c. Emergency Situations   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
2. Thoroughness and Preparation   . . . . . . . . . . . . . . . . . . . . . . . . .  91
3. Retaining Other Lawyers to Assist in the Matter   . . . . . . . . . . . . . .  91
4. Maintaining Competence—Technology and Continuing Legal
Education   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  91
 PROFESSIONAL RESPONSIBILITY xi.

B. DILIGENCE 
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  91
1. Diligence Defined   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  91
a. Diligence Does Not Require Incivility   . . . . . . . . . . . . . . . . . . .  91
b. Workload   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  92
2. Promptness   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  92
3. Completion of the Matter   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  92
4. Existence of Lawyer-Client Relationship   . . . . . . . . . . . . . . . . . . .  92
5. Solo Practitioner’s Duty to Plan for Death or Disability   . . . . . . . . . .  92
C. SINGLE VIOLATION SUFFICIENT TO IMPOSE DISCIPLINE  . . . . . . . . . . . . .  93
D. MALPRACTICE AND OTHER CIVIL LIABILITY  . . . . . . . . . . . . . . . . . . . . .  93
1. Relationship Between Disciplinary Matters and Malpractice Actions   . .  93
2. Ethics Violation as Evidence of Legal Malpractice   . . . . . . . . . . . . .  93
3. Theories of Malpractice Liability   . . . . . . . . . . . . . . . . . . . . . . . . . 94
a. Intentional Tort   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
b. Breach of Fiduciary Duties   . . . . . . . . . . . . . . . . . . . . . . . . . . 94
c. Breach of Contract   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
d. Negligence   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
1) Duty of Due Care   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
a) To Clients   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
b) To Prospective Clients and Third Parties   . . . . . . . . . . . 95
c) Standard of Care   . . . . . . . . . . . . . . . . . . . . . . . . . . 95
2) Breach of Duty of Due Care   . . . . . . . . . . . . . . . . . . . . . . 96
a) Errors of Judgment   . . . . . . . . . . . . . . . . . . . . . . . . . 96
b) Knowledge of Law   . . . . . . . . . . . . . . . . . . . . . . . . .  96
c) Calling in a Specialist   . . . . . . . . . . . . . . . . . . . . . . .  96
3) Legal Causation   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  97
4) Damages   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  97
4. Civil Liability Other than Malpractice  . . . . . . . . . . . . . . . . . . . . . . 98
5. Liability for Negligence of Others   . . . . . . . . . . . . . . . . . . . . . . . . 98
6. Malpractice Insurance   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  98
7. Settling Malpractice Claims   . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
8. Prospective Waiver or Limit of Malpractice Liability   . . . . . . . . . . . . 99
a. May Practice in a Limited Liability Entity   . . . . . . . . . . . . . . . . . 99
b. May Reasonably Limit Scope of Representation   . . . . . . . . . . . . 99
c. May Arbitrate Legal Malpractice Claims   . . . . . . . . . . . . . . . .  100
9. Reimbursement of Client   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  100
xii. PROFESSIONAL RESPONSIBILITY

VI. LITIGATION AND OTHER FORMS OF ADVOCACY  . . . . . . . . . . . . . . . . . . . . .  100

A. MERITORIOUS CLAIMS AND CONTENTIONS ONLY  . . . . . . . . . . . . . . . . 100
1. Discipline for Asserting Frivolous Position   . . . . . . . . . . . . . . . . .  100
2. Defending in Criminal Proceedings   . . . . . . . . . . . . . . . . . . . . . .  101
B. DUTY TO EXPEDITE LITIGATION  . . . . . . . . . . . . . . . . . . . . . . . . . . . .  101
1. Reasonable Efforts to Expedite Litigation   . . . . . . . . . . . . . . . . . .  101
2. Interests of the Client   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  101
C. DUTY OF CANDOR TO THE TRIBUNAL  . . . . . . . . . . . . . . . . . . . . . . . .  102
1. Candor About Applicable Law   . . . . . . . . . . . . . . . . . . . . . . . . .  102
a. False Statements of Law   . . . . . . . . . . . . . . . . . . . . . . . . . .  102
b. Failing to Disclose Controlling Authority   . . . . . . . . . . . . . . . .  102
2. Candor About Facts of Case   . . . . . . . . . . . . . . . . . . . . . . . . . .  103
3. No Obligation to Volunteer Harmful Facts   . . . . . . . . . . . . . . . . .  103
a. Exception—Ex Parte Proceedings   . . . . . . . . . . . . . . . . . . . .  104
4. Using False Evidence   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  104
a. Discovery of Falsity After Evidence Has Been Offered   . . . . . . .  104
b. False Testimony by Criminal Defendant   . . . . . . . . . . . . . . . .  105
1) ABA Model Rules and Restatement Solution   . . . . . . . . . .  105
2) Minority View   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  105
5. Other Corruption of an Adjudicative Proceeding   . . . . . . . . . . . . .  106
D. DUTY OF FAIRNESS TO OPPOSING PARTY AND COUNSEL  . . . . . . . . . .  106
1. Opponent’s Access to Evidence   . . . . . . . . . . . . . . . . . . . . . . . .  106
2. Falsifying Evidence and Assisting in Perjury   . . . . . . . . . . . . . . . .  107
3. Abusing Discovery Procedures   . . . . . . . . . . . . . . . . . . . . . . . .  107
4. Paying Witnesses   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  107
a. Travel, Meals, and Lodging   . . . . . . . . . . . . . . . . . . . . . . . . .  107
b. Loss of Time   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  107
c. Experts’ Fees   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  108
5. Securing Absence or Noncooperation of Witness   . . . . . . . . . . . .  108
6. Violating Court Rules and Orders   . . . . . . . . . . . . . . . . . . . . . . .  108
7. Chicanery at Trial   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  109
a. Referring to Inadmissible Material   . . . . . . . . . . . . . . . . . . . .  109
b. Asserting Personal Knowledge of Contested Facts   . . . . . . . . .  109
c. Asserting Personal Opinions   . . . . . . . . . . . . . . . . . . . . . . . .  110
 PROFESSIONAL RESPONSIBILITY xiii.

8. Using Threats to Gain Advantage in Civil Case   . . . . . . . . . . . . . . .  110

E. DUTY TO PRESERVE IMPARTIALITY AND DECORUM OF TRIBUNAL  . . . . . .  111
1. Improper Influence   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  111
2. Improper Ex Parte Communication   . . . . . . . . . . . . . . . . . . . . . . .  111
a. Judges and Court Officials   . . . . . . . . . . . . . . . . . . . . . . . . .  111
b. Jurors and Prospective Jurors   . . . . . . . . . . . . . . . . . . . . . . .  111
1) Investigation of Prospective Jurors   . . . . . . . . . . . . . . . .  112
a) Juror’s Internet Presence   . . . . . . . . . . . . . . . . . . . .  112
2) Post-Trial Communications with Jurors   . . . . . . . . . . . . . .  112
3. Disruptive Conduct   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  112
F. TRIAL PUBLICITY  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  113
1. General Rule   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  113
2. Right of Reply   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  113
3. Additional Constraint on Criminal Prosecutors   . . . . . . . . . . . . . .  113
4. Dry Facts About Case Permitted   . . . . . . . . . . . . . . . . . . . . . . . .  114
5. Rules Also Apply to Associated Lawyers   . . . . . . . . . . . . . . . . . . .  114
G. TRIAL COUNSEL AS WITNESS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  114
1. Reasons to Avoid Dual Role   . . . . . . . . . . . . . . . . . . . . . . . . . . .  114
a. Conflict of Interest   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  114
b. Differing Functions   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  114
c. Effect on Adversary   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  115
2. Ethical Limitations Imposed   . . . . . . . . . . . . . . . . . . . . . . . . . . .  115
a. Uncontested Matter or Mere Formality   . . . . . . . . . . . . . . . . .  115
b. Testimony About Legal Services Rendered in the Case   . . . . . . .  115
c. Substantial Hardship on Client   . . . . . . . . . . . . . . . . . . . . . .  115
d. Other Lawyers in Firm May Be Witnesses   . . . . . . . . . . . . . . . .  116
3. Conflict of Interest Rules Also Apply   . . . . . . . . . . . . . . . . . . . . .  116
VII. TRANSACTIONS AND COMMUNICATIONS WITH PERSONS OTHER THAN
CLIENTS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  116
A. TRUTHFULNESS IN STATEMENTS TO THIRD PERSONS  . . . . . . . . . . . . .  116
1. Must Not Make False Statements of Material Fact or Law   . . . . . . . .  116
a. Types of Misrepresentation   . . . . . . . . . . . . . . . . . . . . . . . . . 117
b. Distinguish Conventional Puffery   . . . . . . . . . . . . . . . . . . . . . 117
2. Failure to Disclose Material Facts—Client’s Crime or Fraud   . . . . . . . . 117
B. COMMUNICATION WITH PERSONS REPRESENTED BY COUNSEL  . . . . . . .  118
xiv. PROFESSIONAL RESPONSIBILITY

1. When Communication Forbidden   . . . . . . . . . . . . . . . . . . . . . . .  118

2. Application to Organizations   . . . . . . . . . . . . . . . . . . . . . . . . . .  119
3. Communications Allowed by the Rule   . . . . . . . . . . . . . . . . . . . .  119
C. DEALING WITH UNREPRESENTED PERSONS  . . . . . . . . . . . . . . . . . . .  120
D. RESPECT FOR RIGHTS OF THIRD PERSONS  . . . . . . . . . . . . . . . . . . . .  120
1. Heavy-Handed Tactics   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  120
2. Documents Sent to Lawyer by Mistake   . . . . . . . . . . . . . . . . . . . .  121
VIII. DIFFERENT ROLES OF THE LAWYER  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  121
A. LAWYER AS ADVISOR TO THE CLIENT  . . . . . . . . . . . . . . . . . . . . . . . .  121
1. Duty to Render Candid Advice   . . . . . . . . . . . . . . . . . . . . . . . . .  121
2. Giving Advice Beyond the Law   . . . . . . . . . . . . . . . . . . . . . . . . .  121
3. Volunteering Advice   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  122
B. EVALUATION FOR USE BY THIRD PERSONS  . . . . . . . . . . . . . . . . . . . .  122
1. Requirements of the Rule   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  122
2. Harmful Evaluation   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  123
3. Confidentiality   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  123
4. Lawyer’s Liability to Third Person   . . . . . . . . . . . . . . . . . . . . . . .  123
5. Cases in Which Opinion Is to Be Widely Disseminated   . . . . . . . . . .  123
a. Securities Cases   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  124
1) Due Diligence Required   . . . . . . . . . . . . . . . . . . . . . . . .  124
b. Tax Shelter Opinions   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  124
C. LAWYER AS NEGOTIATOR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  124
1. Puffing and Subjective Statements   . . . . . . . . . . . . . . . . . . . . . .  124
2. Misapprehension   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  124
D. LAWYER AS THIRD-PARTY NEUTRAL  . . . . . . . . . . . . . . . . . . . . . . . .  125
1. General Principles   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  125
2. Warning to Unrepresented Parties   . . . . . . . . . . . . . . . . . . . . . .  125
3. Conflicts of Interest   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  125
E. SPECIAL RESPONSIBILITIES OF A PROSECUTOR  . . . . . . . . . . . . . . . . .  125
1. Prosecuting Without Probable Cause   . . . . . . . . . . . . . . . . . . . .  126
2. Protecting Accused’s Right to Counsel   . . . . . . . . . . . . . . . . . . .  126
 PROFESSIONAL RESPONSIBILITY xv.

3. Securing Waiver of Pretrial Rights   . . . . . . . . . . . . . . . . . . . . . .  126

4. Disclosing Evidence that May Help Defense   . . . . . . . . . . . . . . . .  126
5. Disclosing Information that May Mitigate Punishment   . . . . . . . . . .  127
6. Public Statements About Pending Matters   . . . . . . . . . . . . . . . . .  127
7. Disclosing Evidence to Remedy Conviction   . . . . . . . . . . . . . . . . .  127
8. Subpoenaing Other Lawyers   . . . . . . . . . . . . . . . . . . . . . . . . . .  127
9. Other Government Lawyers   . . . . . . . . . . . . . . . . . . . . . . . . . . .  127
a. Terminating Actions   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  127
b. Developing Full Record   . . . . . . . . . . . . . . . . . . . . . . . . . . .  128
F. ADVOCATE IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS  . . . . .  128
1. Appearances in a Representative Capacity   . . . . . . . . . . . . . . . . .  128
2. Duties of Candor and Respect   . . . . . . . . . . . . . . . . . . . . . . . . .  128
3. Limits of These Rules   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  128
G. ORGANIZATION AS CLIENT  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  128
1. Duty of Loyalty to Organization   . . . . . . . . . . . . . . . . . . . . . . . .  128
2. Conflicts Between the Organization and Its Constituents   . . . . . . .  129
3. Protecting the Organization’s Interests   . . . . . . . . . . . . . . . . . . .  129
a. Duty to Report to Higher Authority in Organization   . . . . . . . .  129
b. Duty to Report Outside the Organization   . . . . . . . . . . . . . . .  130
c. Whistle Blower Protection   . . . . . . . . . . . . . . . . . . . . . . . . .  130
4. Representing Both the Organization and an Associated Person   . . .  130
5. Serving as Both Director and Lawyer   . . . . . . . . . . . . . . . . . . . . .  131
6. Securities Lawyer’s Duties Under Sarbanes-Oxley Act   . . . . . . . . . .  131
a. Application to “Securities Lawyers”   . . . . . . . . . . . . . . . . . . .  131
b. Reporting Requirement   . . . . . . . . . . . . . . . . . . . . . . . . . . .  131
c. Investigation by CLO   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  132
d. If Violation Found—“Appropriate Response” Required   . . . . . . .  132
e. When Appropriate Response Not Taken   . . . . . . . . . . . . . . . .  132
f. Revealing Confidential Information   . . . . . . . . . . . . . . . . . . .  132
g. Compliance with Rules   . . . . . . . . . . . . . . . . . . . . . . . . . . .  132
h. Action When Securities Lawyer Is Fired   . . . . . . . . . . . . . . . . .  132
IX. SAFEKEEPING FUNDS AND OTHER PROPERTY  . . . . . . . . . . . . . . . . . . . . . . .  133
A. GENERAL DUTY  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  133
B. SAFEGUARDING PROPERTY  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  133
xvi. PROFESSIONAL RESPONSIBILITY

C. CLIENT TRUST FUND ACCOUNT  . . . . . . . . . . . . . . . . . . . . . . . . . . .  133

1. Type of Account   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  133
a. Large Sum Held for Long Period   . . . . . . . . . . . . . . . . . . . . .  133
b. Small Sums   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  134
2. Funds that Must Be Placed in Account   . . . . . . . . . . . . . . . . . . . .  134
a. Money Advanced by Client to Cover Costs and Expenses   . . . . .  134
b. Legal Fees Advanced by Client   . . . . . . . . . . . . . . . . . . . . . .  134
c. Disputed Funds  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  134
D. DUTY TO NOTIFY, KEEP RECORDS, RENDER ACCOUNTINGS, AND PAY
OVER PROMPTLY  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  135
E. DISPUTED PROPERTY   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  135
1. Funds in Which Both Client and Lawyer Have an Interest   . . . . . . . .  135
2. Funds in Which a Third Party Has an Interest   . . . . . . . . . . . . . . . .  136
X. COMMUNICATIONS ABOUT LEGAL SERVICES  . . . . . . . . . . . . . . . . . . . . . . . .  136
A. CONTENT-BASED RULES FOR ADVERTISING AND OTHER COMMUNICA-
TIONS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  136
1. Basic Rule—Communications Must Be True and Not Misleading   . . .  136
a. Types of False or Misleading Communications   . . . . . . . . . . . .  137
1) Outright Falsehoods   . . . . . . . . . . . . . . . . . . . . . . . . . .  137
2) Omitted Facts   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  137
3) Unfounded Conclusions  . . . . . . . . . . . . . . . . . . . . . . . .  137
4) Unjustified Expectations   . . . . . . . . . . . . . . . . . . . . . . .  137
5) Unsubstantiated Comparisons   . . . . . . . . . . . . . . . . . . .  138
b. Including a Disclaimer  . . . . . . . . . . . . . . . . . . . . . . . . . . . .  138
2. Required and Permitted Information  . . . . . . . . . . . . . . . . . . . . .  138
a. Identification of Advertiser   . . . . . . . . . . . . . . . . . . . . . . . .  138
b. Generally Permitted Information   . . . . . . . . . . . . . . . . . . . .  138
1) Consent of Named Clients   . . . . . . . . . . . . . . . . . . . . . .  139
3. Firm Names, Letterheads, and Other Professional Designations  . . .  139
a. Current, Deceased, and Retired Partners  . . . . . . . . . . . . . . .  139
1) Misleading—Non-Associated Lawyers and Nonlawyers  . . . .  139
b. Using Names of Lawyers Who Have Entered Public Service   . . .  139
c. Must Not Imply Connection with Public or Charitable
Organization  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  139
d. False Indications of Partnership   . . . . . . . . . . . . . . . . . . . . .  140
1) Associated and Affiliated Law Firms   . . . . . . . . . . . . . . .  140
e. Multistate Firms   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  140
4. Identifying Fields of Practice   . . . . . . . . . . . . . . . . . . . . . . . . . .  140
 PROFESSIONAL RESPONSIBILITY xvii.

a. Patent and Admiralty Lawyers   . . . . . . . . . . . . . . . . . . . . . .  141

B. RECOMMENDATIONS 
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  141
1. Exceptions to General Rule  . . . . . . . . . . . . . . . . . . . . . . . . . . . .  141
a. Paying for Advertising and Other Services  . . . . . . . . . . . . . . .  141
1) Paying Others to Generate Client Leads  . . . . . . . . . . . . . .  141
b. Purchase of a Law Practice  . . . . . . . . . . . . . . . . . . . . . . . . .  142
c. Reciprocal Referral Agreements  . . . . . . . . . . . . . . . . . . . . .  142
d. Nominal Gifts or Gratuities  . . . . . . . . . . . . . . . . . . . . . . . . .  143
C. SOLICITATION 
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  143
1. Live Person-to-Person Solicitation Generally Prohibited  . . . . . . . .  143
a. Exception to Prohibition—Significant Motive Is Not Pecuniary
Gain  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  143
b. Exceptions to Prohibition—Certain Targets Are Considered Less
Vulnerable  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  143
2. Written, Recorded, or Electronic Solicitation Generally Permitted  . .  144
3. Circumstances Rendering All Contacts Impermissible  . . . . . . . . . .  144
4. Communications Authorized by Law or Court Order  . . . . . . . . . . .  144
5. Use of Agents to Solicit  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  144
D. GROUP AND PREPAID LEGAL SERVICE PLANS  . . . . . . . . . . . . . . . . . .  145
1. Lawyer May Personally Contact Sponsoring Organizations  . . . . . . .  145
2. Plan May Personally Contact Potential Members  . . . . . . . . . . . . .  145
a. Participating Lawyer Must Not Be Owner or Director  . . . . . . . .  146
3. Must Assure Compliance With Advertising and Solicitation Rules  . .  146
E. GOVERNMENT REGULATION OF COMMUNICATIONS ABOUT LEGAL
SERVICES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  146
1. False and Misleading Ads and In-Person Solicitation May Be
Banned   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  146
2. Disclosure Requirements for Misleading Communications—Rational
Basis Test  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  146
3. Other Regulation of Truthful, Nondeceptive Communications—
Intermediate Scrutiny   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  147
XI. LAWYERS’ DUTIES TO THE PUBLIC AND THE LEGAL SYSTEM   . . . . . . . . . . . . . .  147
A. PRO BONO PUBLICO SERVICE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  147
B. COURT APPOINTMENTS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  147
1. Violation of Law or Disciplinary Rule   . . . . . . . . . . . . . . . . . . . . .  148
xviii. PROFESSIONAL RESPONSIBILITY

2. Unreasonable Financial Burden   . . . . . . . . . . . . . . . . . . . . . . . .  148

3. Personal Inability to Represent Client Effectively   . . . . . . . . . . . . .  148
C. LIMITED LEGAL SERVICES PROGRAMS  . . . . . . . . . . . . . . . . . . . . . . .  148
1. Client Consents to Short-Term, Limited Legal Service   . . . . . . . . .  149
2. Applicability of Ethics Rules   . . . . . . . . . . . . . . . . . . . . . . . . . .  149
3. Conflict of Interest Rules Are Relaxed   . . . . . . . . . . . . . . . . . . . .  149
4. Imputed Conflict Rule Is Also Relaxed   . . . . . . . . . . . . . . . . . . . .  149
5. Conflicts Rules Apply Fully If Quick Advice Leads to Regular
Representation   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  150
D. MEMBERSHIP IN LEGAL SERVICES ORGANIZATIONS  . . . . . . . . . . . . . .  150
1. Statement of the Problem   . . . . . . . . . . . . . . . . . . . . . . . . . . .  150
2. General Rule   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  150
E. LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS  . . . . . . . . . . .  151
1. Activities that May Harm Client   . . . . . . . . . . . . . . . . . . . . . . . . .  151
2. Activities that May Benefit Client   . . . . . . . . . . . . . . . . . . . . . . .  151
F. ASSISTING IN JUDICIAL MISCONDUCT   . . . . . . . . . . . . . . . . . . . . . . .  152
G. STATEMENTS ABOUT JUDICIAL AND PUBLIC LEGAL OFFICIALS   . . . . . . .  152
H. LAWYER RUNNING FOR JUDICIAL OFFICE   . . . . . . . . . . . . . . . . . . . . .  152
I. ABILITY TO INFLUENCE GOVERNMENT OFFICIALS   . . . . . . . . . . . . . . .  152
J. POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT EMPLOYMENT  . .  153
1. Prohibited Contributions   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  153
2. Excluded Employment   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  153
XII. JUDICIAL ETHICS  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  153
A. SELECTION, TENURE, AND DISCIPLINE OF JUDGES  . . . . . . . . . . . . . . .  153
1. Federal Judges   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  153
2. State Judges   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  154
3. Code of Judicial Conduct   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  154
a. Adoption of the CJC   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  154
b. Who Is Subject to the CJC?   . . . . . . . . . . . . . . . . . . . . . . . .  154
c. Format of the CJC   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  154
B. PROMOTION OF JUDICIAL INTEGRITY AND AVOIDANCE OF APPEARANCE
OF IMPROPRIETY  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  154
 PROFESSIONAL RESPONSIBILITY xix.

1. Compliance with Law and Promotion of Public Confidence in the

Judiciary   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  155
2. Test for Appearance of Impropriety   . . . . . . . . . . . . . . . . . . . . .  155
3. Community Outreach   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  155
4. Abuse of Judicial Prestige   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  155
a. References and Recommendations   . . . . . . . . . . . . . . . . . . .  155
C. IMPARTIAL, COMPETENT, AND DILIGENT PERFORMANCE OF JUDICIAL
DUTIES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  156
1. Judicial Duties—In General   . . . . . . . . . . . . . . . . . . . . . . . . . . .  156
2. Hearing and Deciding Matters Assigned   . . . . . . . . . . . . . . . . . .  156
3. Impartiality and Fairness   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  156
4. External Influences on Judicial Conduct   . . . . . . . . . . . . . . . . . . .  156
5. Competence, Diligence, and Cooperation   . . . . . . . . . . . . . . . . . .  157
6. Ensuring Right to Be Heard   . . . . . . . . . . . . . . . . . . . . . . . . . . .  157
a. Factors for Determining Appropriate Settlement Practice   . . . .  157
7. Avoidance of Bias, Prejudice, and Harassment   . . . . . . . . . . . . . . .  157
8. Ex Parte Communications   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  158
a. Expressly Authorized by Law   . . . . . . . . . . . . . . . . . . . . . . .  158
b. Mediation or Settlement   . . . . . . . . . . . . . . . . . . . . . . . . . .  158
c. Emergencies or Administrative Matters   . . . . . . . . . . . . . . . .  158
d. Inadvertent Receipt of Unauthorized Ex Parte Communication   . .  159
9. Communications from Others   . . . . . . . . . . . . . . . . . . . . . . . . .  159
a. Court Personnel   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  159
b. Disinterested Legal Experts   . . . . . . . . . . . . . . . . . . . . . . . .  159
10. Independent Investigation of Facts   . . . . . . . . . . . . . . . . . . . . .  159
11. Public Comments on Cases   . . . . . . . . . . . . . . . . . . . . . . . . . . .  159
a. Official Duties Excepted   . . . . . . . . . . . . . . . . . . . . . . . . . .  160
b. Judge as a Party   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  160
12. Promises with Respect to Cases Likely to Come Before Court   . . . . . 160
13. Decorum, Demeanor, and Communication with Jurors   . . . . . . . . .  160
14. Administrative Appointments   . . . . . . . . . . . . . . . . . . . . . . . . .  160
a. Appointments of Lawyers Contributing to Judge’s Election
Campaign   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  161
15. Responding to Judicial and Lawyer Misconduct   . . . . . . . . . . . . . .  161
16. Disability and Impairment of Other Judges or Lawyers   . . . . . . . . .  161
xx. PROFESSIONAL RESPONSIBILITY

17. Cooperation with Disciplinary Authorities   . . . . . . . . . . . . . . . . . .  161

18. Disqualification   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  161
a. General Rule—Whenever Impartiality Might Reasonably Be
Questioned   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  161
1) Disclosure by Judge   . . . . . . . . . . . . . . . . . . . . . . . . . .  162
2) Rule of Necessity   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  162
b. Bias or Personal Knowledge   . . . . . . . . . . . . . . . . . . . . . . . .  162
c. Prior Involvement   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  163
d. Economic Interest   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  163
1) Definition of “Economic Interest”   . . . . . . . . . . . . . . . . .  164
2) Exceptions to Definition   . . . . . . . . . . . . . . . . . . . . . . .  164
a) Mutual Funds   . . . . . . . . . . . . . . . . . . . . . . . . . . . .  164
b) Securities Held by Organization   . . . . . . . . . . . . . . .  164
c) Bank Deposits, Mutual Insurance Policies, and the Like   . .  165
d) Government Securities   . . . . . . . . . . . . . . . . . . . . .  165
e. Involvement in the Proceeding   . . . . . . . . . . . . . . . . . . . . . .  165
1) Meaning of Third Degree of Relationship   . . . . . . . . . . . .  165
f. Persons Making Contributions to Judge’s Election Campaign   . .  165
g. Public Statements of Judicial Commitment   . . . . . . . . . . . . .  166
h. Remittal of Disqualification   . . . . . . . . . . . . . . . . . . . . . . . .  166
D. EXTRAJUDICIAL ACTIVITIES  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  166
1. In General   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  166
2. Governmental Hearings and Consultations   . . . . . . . . . . . . . . . . .  167
3. Testifying as Character Witness   . . . . . . . . . . . . . . . . . . . . . . . .  167
4. Governmental Committees and Commissions   . . . . . . . . . . . . . . .  167
5. Participation in Educational, Religious, Charitable, Fraternal, or Civic
Organizations and Activities   . . . . . . . . . . . . . . . . . . . . . . . . . .  167
a. Encouraging Pro Bono Service   . . . . . . . . . . . . . . . . . . . . . .  168
6. Affiliation with Discriminatory Organizations   . . . . . . . . . . . . . . .  168
a. Determination of “Invidious Discrimination”   . . . . . . . . . . . . .  168
b. Exercise of Religion Does Not Violate Rule   . . . . . . . . . . . . . .  169
c. Immediate Resignation Required   . . . . . . . . . . . . . . . . . . . .  169
7. Use of Nonpublic Information   . . . . . . . . . . . . . . . . . . . . . . . . .  169
8. Financial, Business, or Remunerative Activities   . . . . . . . . . . . . . .  169
a. Divesting Problematic Interests   . . . . . . . . . . . . . . . . . . . . .  170
b. Minimizing Time Spent on Business Activities   . . . . . . . . . . . .  170
9. Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or
Other Things of Value   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  170
 PROFESSIONAL RESPONSIBILITY xxi.

a. Gifts Acceptable Without Reporting   . . . . . . . . . . . . . . . . . .  170

b. Gifts that Must Be Reported   . . . . . . . . . . . . . . . . . . . . . . . .  171
10. Fiduciary Activities   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  171
a. Financial Dealings as Fiduciary   . . . . . . . . . . . . . . . . . . . . . .  171
b. Conflicting Duties   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  171
c. Fiduciary Who Becomes a Judge Must Comply with Rule   . . . . .  172
11. Service as Arbitrator or Mediator   . . . . . . . . . . . . . . . . . . . . . . .  172
12. Practice of Law   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  172
13. Compensation for Extrajudicial Activities   . . . . . . . . . . . . . . . . . .  172
14. Reimbursement of Expenses and Waiver of Fees or Charges   . . . . .  172
a. Factors Judge Should Consider in Determining Propriety of
Reimbursement or Fee Waiver   . . . . . . . . . . . . . . . . . . . . . .  172
15. Reporting Requirements   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  173
a. Contents of Public Report   . . . . . . . . . . . . . . . . . . . . . . . . .  174
b. Time for Making Report   . . . . . . . . . . . . . . . . . . . . . . . . . . .  174
c. Location of Filing   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  174
E. JUDGES’ POLITICAL AND CAMPAIGN ACTIVITIES  . . . . . . . . . . . . . . . . .  174
1. Political and Campaign Activities of Judges and Judicial Candidates
in General   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  174
a. Activities of Other Persons   . . . . . . . . . . . . . . . . . . . . . . . . .  175
b. No “Family Exception” to Prohibition Against Candidate
Endorsement   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  175
c. Participation in Caucus-Type Elections Is Permitted   . . . . . . . .  175
d. Responding to Statements by Others   . . . . . . . . . . . . . . . . . .  175
e. Pledges or Promises   . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  175
1) Promises Related to Judicial Organization Permitted   . . . . .  176
2) Responding to Media Questionnaires Requires Caution   . . .  176
2. Political and Campaign Activities of Judicial Candidates in Public
Elections   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  176
a. Certain Activities Permitted   . . . . . . . . . . . . . . . . . . . . . . . .  177
1) Exception—Candidates in Partisan Elections May Be Identified
with Political Organizations   . . . . . . . . . . . . . . . . . . . . .  177
3. Activities of Candidates for Appointive Judicial Office   . . . . . . . . .  177
4. Campaign Committees   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  177
a. Solicitation Time Limits   . . . . . . . . . . . . . . . . . . . . . . . . . . .  178
b. Campaign Contribution Limits   . . . . . . . . . . . . . . . . . . . . . .  178
c. Disclosure Requirements   . . . . . . . . . . . . . . . . . . . . . . . . . .  178
5. Activities of Judges Who Become Candidates for Nonjudicial Office   . .  178
F. APPLICATION OF THE CODE OF JUDICIAL CONDUCT  . . . . . . . . . . . . . .  178
 PROFESSIONAL RESPONSIBILITY 1.

PROFESSIONAL RESPONSIBILITY

I. REGULATION OF THE LEGAL PROFESSION

A. SOURCES OF REGULATION
1. The State
The practice of law, like other professions and businesses, affects the public
interest and is, therefore, subject to regulation by the states in the exercise of their
police powers.

a. Courts
Because the practice of law is intimately connected with the administration of
justice, the courts have the inherent power to regulate the legal profession in
and out of court. The ultimate power thus rests with the highest court in the
state, not with the state legislature. The highest court generally promulgates the
ethics rules and oversees the discipline of lawyers.

1) Ethics Rules—The American Bar Association (“ABA”) Model Rules and

Judicial Code
Every state has professional ethics rules that govern the conduct of
lawyers, and nearly every state has adopted some version of the ABA
Model Rules of Professional Conduct. Likewise, most states have adopted
some version of the ABA Model Code of Judicial Conduct.

2) Case Law
Every state has a body of judge-made case law concerning the rights and
duties of lawyers. For example, the case law of a state may limit a lawyer’s
ability to enforce a fee contract after being fired by the client.

3) Rules of Court
State courts typically have rules of court with which lawyers must comply.
For example, a rule of court may govern the lawyer’s obligation to repre-
sent an indigent client at the court’s request.

b. Bar Associations
Each state has an association of lawyers, commonly called the state bar associa-
tion. A majority of states have an “integrated” bar system, meaning that every
lawyer who is admitted to practice in the state must be a member of the state
bar association. Common functions of a state bar association are to admin-
ister the state’s bar examination, to provide continuing education programs for
practicing lawyers, and to assist the state courts in regulating and imposing
professional discipline on lawyers.
2. PROFESSIONAL RESPONSIBILITY

c. Congress and State Legislatures

Congress and the states have enacted statutes that govern some aspects of
the practice of law. For example, the Sarbanes-Oxley Act imposes a mandatory
reporting duty when a securities lawyer becomes aware of credible evidence
that a client is materially violating a federal or state securities law. Also, a state
evidence statute may define the scope of the attorney-client privilege.

2. The Federal System

a. Courts
A lawyer who practices in a federal court or agency is also constrained by
federal statutes, federal case law, and the rules of that particular court or
agency. Each federal court has its own bar, and a lawyer cannot practice before
a particular court without first becoming a member of its bar.

b. Government Attorneys
An attorney for the federal government is subject to state laws and rules (as
well as local federal court rules) governing attorneys in each state in which the
attorney engages in her duties. [28 U.S.C. §530B(a)] Note that federal regula-
tions interpret this statute as pertaining only to rules that prescribe ethical
conduct for attorneys and that would subject an attorney to professional disci-
pline (e.g., it does not apply to state rules of evidence or procedure, or state
substantive law). [28 C.F.R. §§77.2, .3]

3. Regulation by Multiple States

A lawyer is subject to regulation by each state in which the lawyer is admitted to
practice, regardless of where the lawyer actually practices law or where the lawyer’s
conduct occurred. [ABA Model Rule 8.5] If the rules of the states in which the lawyer
is admitted are in conflict, choice of law rules apply (see C.4., infra).

B. ADMISSION TO THE PRACTICE OF LAW

In most states, to be admitted to the practice of law, a person must have successfully
completed college and law school, passed a bar examination, and submitted to a bar
admission committee an application for admission, which generally includes proof of
good moral character. If the committee approves the application, the candidate is sworn
in to practice before the highest court of the state. Note that each state has its own “bar”
(roster of lawyers who are admitted to practice), and admission to the bar of one state
does not, without more, entitle a person to practice law in any other state.

1. The Application
An applicant for admission to the bar must respond truthfully and completely to
inquiries made on the application or otherwise by the admissions committee.

a. False Statements
An applicant for admission to the bar, or a lawyer in connection with a bar
 PROFESSIONAL RESPONSIBILITY 3.

admission application, must not knowingly make a false statement of material

fact. [ABA Model Rule 8.1(a)]

EXAMPLE
When A applied for admission to the bar, he was required to fill out a personal
information form that asked whether he had ever been convicted of a crime,
received less than an honorable discharge from the military service, or been dis-
ciplined for dishonesty by any school. A knowingly failed to reveal that he had
been suspended from college for a semester for cheating on an examination.
A’s failure to reveal the suspension is grounds for denying his bar application.
If A’s failure to reveal is discovered after A is admitted to the bar, A is subject to
discipline. [See Carter v. Charos, 536 A.2d 527 (R.I. 1988)]

b. Failure to Disclose Information

Likewise, an applicant (or a lawyer in connection with an applicant’s application
for admission to the bar) must not: (1) fail to disclose a fact necessary to correct
a misapprehension known by the person to have arisen in the matter, or (2)
knowingly fail to respond to a lawful demand for information from an admis-
sions authority. [ABA Model Rule 8.1(b)] This rule does not, however, require
disclosure of information otherwise protected by the confidentiality provisions of
the Rules of Professional Conduct. (See III., infra.)

EXAMPLE
Bar applicant B applied for admission using a forged certificate of graduation
from the State University School of Law. Attorney A knew about B’s forgery, and
she knew that the forgery had not been detected by the bar admission officials.
A must voluntarily tell the bar admission officials about the forgery.

2. Character and Fitness—“Good Moral Character”

The state has an interest in insuring that lawyers admitted to practice possess high
moral standards and are mentally and emotionally stable.

a. Investigative Procedure
A bar applicant is usually required to fill out a detailed questionnaire and list
a number of references as part of his application. (Some states also require
the applicant to submit fingerprints and photographs.) This information is
then checked either by letter or personal investigation. If there is a question
concerning the applicant’s moral fitness, the applicant may be asked to appear
at a hearing before the committee.

1) Burden of Proof and Duties of Applicant

The burden of coming forward and establishing good moral character is
on the applicant. In addition, the applicant owes a duty to cooperate in
4. PROFESSIONAL RESPONSIBILITY

reasonable investigations by the state bar and to make disclosures relevant

to his fitness to practice law. [In re Anastaplo, 366 U.S. 82 (1961)]

2) Procedural Rights
A bar applicant has a right to due process in committee proceedings.
Thus, he has the right to know the charges filed against him, to explain
away derogatory information, and to confront critics. [Willner v. Committee,
373 U.S. 96 (1963)] An applicant who is denied admission on the basis
of bad moral character is entitled to judicial review, usually by the state’s
highest court.

b. Conduct Relevant to Moral Character

All aspects of an applicant’s past conduct that reflect on his honesty and
integrity are relevant to an evaluation of moral character. The committee may
consider any conduct or charges against the applicant—including those charges
of which the applicant was acquitted—and any litigation to which the applicant
was a party.

EXAMPLE
In one case, an applicant was denied admission because of personality traits
that were deemed to make him unfit to practice. It was shown that the applicant
was overly sensitive, rigid, and suspicious; was excessively self-important; and
had a tendency to make false accusations against others and ascribe evil mo-
tives to them. [Application of Ronwin, 555 P.2d 315 (Ariz. 1976)]

1) Criminal Conduct
Mere conviction of any crime is not sufficient to deny the admission of an
applicant to practice law. To cause disqualification of an applicant, the
crime in question must involve moral turpitude, such as a crime involving
intentional dishonesty for the purpose of personal gain (e.g., forgery,
bribery, theft, perjury, robbery, extortion) or a crime involving violence (e.g.,
murder, rape, mayhem). The nature of the offense and the motivation of the
violator are also factors in determining whether moral turpitude exists.

a) “Adolescent Misbehavior” and Civil Disobedience

Examples of criminal behavior that do not rise to the level of moral
turpitude include an applicant’s arrest when he was a youth for a
fistfight (adolescent behavior that does not necessarily bear on the
applicant’s current fitness to practice law) and an applicant’s arrest
for nonviolent civil disobedience. [See Hallinan v. Committee of Bar
Examiners, 65 Cal. 2d 447 (1966)]

2) Rehabilitation
An applicant may still gain admission to the legal profession despite past
 PROFESSIONAL RESPONSIBILITY 5.

conduct involving moral turpitude if he can demonstrate sufficient rehabili-

tation of his character and a present fitness to practice law. [See, e.g.,
March v. Committee of Bar Examiners, 67 Cal. 2d 718 (1967)]

3) Concealment of Past Conduct Constitutes Moral Turpitude

False statements or concealment of facts in response to an inquiry by the
admissions committee is itself evidence of sufficient lack of moral character
to deny admission—even if the underlying conduct does not involve moral
turpitude. [ABA Model Rule 8.1; and see Geoffrey C. Hazard, Jr. and W.
William Hodes, The Law of Lawyering (hereafter “Hazard & Hodes”) §66.04
(4th ed. 2015)]

4) Political Activity
An applicant who refuses to take the oath to uphold the state and federal
Constitutions may be denied admission because there is a rational connec-
tion between this requirement and the practice of law. [Law Students
Research Council v. Wadmond, 401 U.S. 154 (1971)] However, an applicant’s
mere membership in the Communist Party (when there is no showing that
the applicant engaged in or advocated actions to overthrow the govern-
ment by force or violence) is not sufficient to show a lack of moral character
and deny the applicant admission to practice law. [Schware v. Board of Bar
Examiners, 353 U.S. 232 (1957)]

3. Citizenship and Residency Are Not Valid Requirements

A state cannot require that a person be a United States citizen to be admitted
to the practice of law; such a requirement violates the Equal Protection Clause
of the United States Constitution. [In re Griffiths, 413 U.S. 717 (1973)] Similarly, a
requirement that a bar applicant be a resident of the state in which he is seeking
admission to practice law violates the Privileges and Immunities Clause of the
Constitution and is, therefore, invalid. [Supreme Court of New Hampshire v. Piper,
470 U.S. 274 (1985)]

C. REGULATION AFTER ADMISSION

Upon admission to the bar, a person becomes a lawyer and is thus subject to the appli-
cable law governing such matters as professional discipline, procedure and evidence,
civil remedies, and criminal sanctions.

1. What Constitutes Professional Misconduct

a. Violation of the Rules of Professional Conduct

It is professional misconduct for a lawyer to: (1) violate or attempt to violate any
of the Rules of Professional Conduct, (2) knowingly assist or induce another
person to violate the Rules, or (3) use the acts of another person to commit a
violation. [ABA Model Rule 8.4(a)]
6. PROFESSIONAL RESPONSIBILITY

EXAMPLE
Attorney A knows that it is a violation of the Rules to approach an accident vic-
tim at the scene of the accident and offer his legal services. A asks his brother-
in-law T, a tow truck driver, to give A’s business cards to people involved in the
accidents that T is called to tow. A is guilty of professional misconduct for using
the acts of another to violate a rule.

b. Certain Criminal Acts

A lawyer is subject to discipline for committing a criminal act that reflects
adversely on his honesty, trustworthiness, or fitness as a lawyer in other
respects. [ABA Model Rule 8.4(b)] To constitute professional misconduct, the
crime must involve some characteristic that is relevant to the practice of law. For
example, crimes involving dishonesty, breach of trust, substantial interference
with the administration of justice, and most crimes involving violence reflect on
the lawyer’s fitness to practice law. Other crimes (e.g., solicitation of prostitu-
tion, single offense of drunk driving, possession of a marijuana cigarette), while
punishable by law, do not necessarily trigger professional discipline.

EXAMPLES
1) Attorney A willfully failed to file a personal federal income tax return, know-
ing that she owed a substantial amount of tax. Even though A’s conduct was not
connected with her practice of law, A is subject to discipline.
2) Lawyer L is arrested for soliciting sexual acts from an undercover police of-
ficer whom L believed to be a prostitute. L is not subject to discipline because
his criminal conduct does not show dishonesty, untrustworthiness, or unfitness
to practice law.

c. Dishonesty, Fraud, Deceit, or Misrepresentation

Any conduct involving dishonesty, fraud, deceit, or misrepresentation consti-
tutes professional misconduct. [ABA Model Rule 8.4(c)] Examples of this type of
misconduct, which need not rise to the level of a crime, include cheating on a
bar examination [see In re Lamb, 49 Cal. 3d 239 (1989)—lawyer who imperson-
ated her husband for exam was disbarred], plagiarism [see In re Lamberis, 443
N.E.2d 549 (Ill. 1982)—plagiarism in preparation of LL.M. thesis resulted in disci-
pline], and defrauding one’s own law firm by misusing expense accounts [see In
re Siegel, 627 A.2d 156 (N.J. 1993); and see Hazard & Hodes, §69.05].
d. Conduct Prejudicial to the Administration of Justice
A lawyer is subject to discipline for engaging in conduct that is prejudicial to
the administration of justice. [ABA Model Rule 8.4(d)] This rule is rarely invoked
because nearly all of the offenses that would arise under it (e.g., falsifying
evidence, improper delaying tactics, frivolous claims) are dealt with more specif-
ically in the rules relating to litigation (see VI., infra).
 PROFESSIONAL RESPONSIBILITY 7.

e. Stating or Implying Ability to Improperly Influence Officials

A lawyer must never state or imply that he has the ability to improperly influence
a government agency or official or to achieve results by means that violate the
law or legal ethics rules. [ABA Model Rule 8.4(e)]

f. Assisting a Judge in Violation of Judicial Code

A lawyer is subject to discipline for knowingly assisting a judge or judicial officer
in conduct that violates the Code of Judicial Conduct or other law. [ABA Model
Rule 8.4(f)]

g. Harassment or Discrimination in Law Practice

A lawyer must not, in conduct related to the practice of law (e.g., representing
clients, interacting with witnesses, operating and managing a law practice),
engage in conduct that the lawyer knows or reasonably should know is harass-
ment or discrimination on the basis of race, sex, religion, national origin,
ethnicity, disability, age, sexual orientation, gender identity, marital status, or
socioeconomic status. Note: A trial judge’s finding that a lawyer exercised
peremptory challenges on a discriminatory basis does not, on its own, establish
a violation of this rule. [ABA Model Rule 8.4(g)]

1) Permitted Actions
This rule does not limit a lawyer’s ability to:

a) Accept, decline, or withdraw from a representation in accordance with

ABA Model Rule 1.16 (see II.G., infra), or limit her practice to members of
underserved populations in accordance with the Rules of Professional
Conduct;

b) Provide legitimate advice or advocacy that is otherwise consistent with

the Rules of Professional Conduct; or

c) Promote diversity or inclusion (e.g., efforts aimed at recruiting, hiring,

retaining, and advancing diverse employees).

2. Duty to Report Professional Misconduct

The legal profession prides itself on being self-policing. One element of a self-
policing group is that each member of the group must be obligated to report miscon-
duct by the other members. Therefore, a lawyer who knows that another lawyer has
violated the Rules of Professional Conduct in such a way that it raises a substantial
question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer must
report the violation to the appropriate professional authority. Similarly, a lawyer who
knows that a judge has violated the Code of Judicial Conduct in a way that raises a
substantial question as to the judge’s fitness for office must report the violation to
the appropriate authority. [ABA Model Rule 8.3]
8. PROFESSIONAL RESPONSIBILITY

EXAMPLES
1) Attorney A learned that attorney B and accountant T had formed a tax service
partnership in which T would do solely accounting work and B would do solely legal
work. B has thus violated the disciplinary rule against partnerships with nonlawyers.
(See H.2., infra.) A may report the violation, but she will not be subject to discipline
if she fails to do so. A may decline to report B’s violation because it concerns an
arcane guild rule and does not indicate that B is dishonest, untrustworthy, or unfit to
practice law. Other examples of violations that may not raise a substantial question
as to a lawyer’s fitness to practice include some types of improper solicitation and
the improper use of nonlawyer assistants.
2) Lawyer M and lawyer N are good friends and golfing buddies. One day, they were
golfing and mutually complaining about the tax laws; N mentioned that he does not
worry about tax increases because he just underreports his income when the taxes
go up. M must report N to the disciplinary authorities. Despite the fact that N was dis-
cussing his conduct in his personal affairs, it is illegal conduct involving dishonesty
and must be reported. [See Hazard & Hodes, §68.04]

a. Key Definitions
“Knowledge” means actual knowledge, but it may be inferred from the circum-
stances. It has been held to mean more than mere suspicion. Thus, while a
lawyer may report suspected misconduct, she must report known misconduct.
“Substantial” means “a material matter of clear and weighty importance.” [ABA
Model Rules, Terminology]

b. Sanctions for Failure to Report Misconduct

A lawyer who fails to report this type of misconduct is herself subject to disci-
pline for violating the rule requiring disclosure. [ABA Model Rule 8.3]

c. Exceptions—Confidential Information and Lawyers’ Assistance Programs

This rule does not require disclosure of information protected by the confidenti-
ality rules (see III., infra). Thus, if a lawyer learns about another lawyer’s miscon-
duct while representing the other lawyer or some other client, the lawyer has no
duty to report the misconduct. Indeed, the lawyer would be subject to discipline
for violating the confidentiality rules if he did report it. Moreover, there is no duty
to disclose information gained by a lawyer or judge while serving as a member
of an approved lawyers’ assistance program that helps lawyers and judges with
substance abuse problems. [ABA Model Rule 8.3(c) and comment 5]

EXAMPLES
1) Lawyer L sought legal advice from his mentor, lawyer M, as to what L should
do about offering a certain piece of evidence in court. L made it plain that he
was seeking advice from M in M’s role as a lawyer. L told M that he knew the
evidence was false. M, of course, advised L not to offer the evidence. A few
 PROFESSIONAL RESPONSIBILITY 9.

months later, M learned that L had ignored her advice and had offered the evi-
dence. Because M’s knowledge of the matter is protected by the ethical duty of
confidentiality, M must not report L’s disciplinary violation.
2) Attorney X had long been aware that attorney Y, another partner in his firm,
had a very serious drinking problem, but X did not have any proof that it was
affecting Y’s job performance. One day, X ran into Y as Y was on his way into
court. Y was clearly drunk and could barely follow their conversation. X cau-
tioned Y not to appear before the judge, but Y responded that he had tried
cases when he was in worse shape than this. X must report Y to the disciplinary
authorities. X did not learn of Y’s substance abuse in the context of an approved
lawyers’ assistance program or an attorney-client relationship.

3. Disciplinary Process
“Professional discipline” means punishment imposed on a lawyer for breaking a rule
of professional ethics.

a. Complaint
Disciplinary proceedings against a lawyer begin when a complaint is made
to the state disciplinary authority (usually the state bar). Complaints are often
brought by aggrieved clients, but may also be brought by anyone with knowl-
edge of the misconduct. Filing a complaint against a lawyer is considered privi-
leged, and thus cannot be the basis of an action (e.g., defamation) by the lawyer
against the complainant.

b. Screening
If the complaint is without merit, it might be dismissed by the grievance
committee without ever involving the lawyer. If the complaint appears to have
merit, the lawyer will be asked to respond to the charges. After further investi-
gation, the committee will either dismiss the complaint or schedule a hearing. If
the committee dismisses the complaint, the complainant does not have any right
to appeal; the decision is final.

c. Hearing

1) Due Process Required

If there is a hearing on the complaint, the accused lawyer is entitled to
procedural due process, which means that she has the right to counsel, to
proper notice, to be heard and introduce evidence, and to cross-examine
adverse witnesses. In addition, the hearing must be limited to the charges
made in the complaint. [In re Ruffalo, 390 U.S. 544 (1968)]

2) Application of Other Rights

The exclusionary rules of criminal law do not apply to disciplinary
proceedings. Thus, evidence obtained through an illegal search, for
10. PROFESSIONAL RESPONSIBILITY

example, is admissible in a disciplinary proceeding. A lawyer may, however,

invoke his Fifth Amendment privilege and refuse to answer questions at
the hearing, and no disciplinary action can be taken against the lawyer
if it is based solely on the claim of Fifth Amendment privilege. [Spevack v.
Klein, 385 U.S. 511 (1967)]

3) Burden of Proof
The burden of proof is on the party prosecuting the charge, and most
states require proof of the charge beyond a preponderance of the evidence
(but less than beyond a reasonable doubt). Most states also require that
only evidence admissible under the rules of evidence be considered; thus,
inadmissible hearsay would be excluded.

4) Decision and Review

After the hearing, the grievance committee will either dismiss the charges
or recommend sanctions. If sanctions are recommended or disciplinary
action is actually taken, the lawyer is entitled to review of the decision by
the state’s highest court. The burden is then on the lawyer to show that the
committee’s action or recommendation is not supported by the record or is
otherwise unlawful.

d. Sanctions
The most common sanctions imposed on a lawyer found to have committed
professional misconduct are:

1) Private or public reprimand or censure, which is an acknowledgment of

misconduct that goes on the lawyer’s record with the disciplinary authorities;

2) Suspension of the lawyer’s license to practice for a definite period of time,

at the end of which the right to practice is automatically reinstated; and

3) Disbarment, which is the permanent revocation of the lawyer’s license

to practice. A disbarred lawyer may, however, apply for readmission upon
proof of rehabilitation.

Other sanctions available include probation, restitution, costs of the disci-

plinary proceedings, and limitations on the lawyer’s practice. Which sanction is
imposed generally depends on the severity of the misconduct and the presence
or absence of mitigating or aggravating circumstances.

4. Choice of Law in Disciplinary Proceedings

If the conduct in question occurred in connection with a proceeding that is pending
before a tribunal, the ethics rules of the jurisdiction in which the tribunal sits will
be applied, unless the tribunal’s rules provide otherwise. For any other conduct,
the rules of the jurisdiction in which the conduct occurred will apply, but if the
 PROFESSIONAL RESPONSIBILITY 11.

predominant effect of the conduct is in some other jurisdiction, that jurisdiction’s

rules will apply. A lawyer will not be subject to discipline if her conduct is proper
in the jurisdiction in which she reasonably believes the predominant effect of her
conduct will occur. [ABA Model Rule 8.5]

EXAMPLE
The legal ethics rules of East Dakota prohibit a lawyer from paying a “referral fee”
to another lawyer as compensation for the referral of a legal matter. The legal ethics
rules of West Dakota permit such referral fees if they are reasonable in amount and
if the referred client consents. East Dakota lawyer Ed referred an estate planning
client to West Dakota lawyer Wes. The client lives in West Dakota and most of her
property is located there. With the client’s consent, Wes sent Ed a reasonable refer-
ral fee. Wes is not subject to discipline in either state.

a. Conflicts of Interest—Choice of Law Agreements Permitted

As stated above, there is a safe harbor for a lawyer whose conduct conforms to
the rules of a jurisdiction in which she “reasonably believes” the predominant
effect will occur. Regarding conflicts of interest only, a lawyer and client may
enter into an advance written agreement specifying the predominant effect
jurisdiction, i.e., which jurisdiction’s conflicts rules will apply to the matter. If
the agreement is entered into with the client’s informed consent and the client
later tries to disqualify the lawyer from another matter or files a disciplinary
complaint, the agreement may be considered by the court or disciplinary
authority in determining whether the lawyer reasonably believed the jurisdic-
tion’s rules would apply. [ABA Model Rule 8.5, comment 5]

5. Effect of Sanctions in Other Jurisdictions

A suspension or disbarment in one jurisdiction does not automatically affect a
lawyer’s ability to practice in another jurisdiction.

a. Other States
Professional discipline imposed by one state is not necessarily binding on
another. Most states recognize the determinations of lawyer misconduct by sister
states, but they do not agree on the reasons for recognition. The preferred view
is that sister states accept disciplinary action by one state as conclusive proof of
the misconduct, but not of the sanctions imposed. [See Kentucky Bar Association
v. Signer, 558 S.W.2d 582 (Ky. 1977); Florida Bar v. Wilkes, 179 So. 2d 193 (Fla.
1965); ABA Model Rule for Lawyer Disciplinary Enforcement 22E] Under this
view, sister states are free to impose their own sanctions for the misconduct.

b. Federal Courts
Each federal court in which a lawyer is admitted to practice must make an
independent evaluation of the lawyer’s conduct. [Theard v. United States,
354 U.S. 278 (1957)] The fact that a lawyer has been disciplined by a state,
12. PROFESSIONAL RESPONSIBILITY

however, is competent evidence in a federal proceeding and may in itself be

sufficient to convince a federal court to impose a similar sanction. [See In re
Rhodes, 370 F.2d 411 (8th Cir. 1967)]

6. Disability Proceedings
A lawyer who is incapacitated by an impairment such as substance abuse poses
a particular risk of harm to clients, the public, and legal institutions. Most jurisdic-
tions have disability proceedings, which result in the disabled lawyer’s suspension
from practice until she can show that rehabilitation has occurred. The procedures
followed are generally the same as those of disciplinary proceedings, but provision
may be made for psychiatric evaluation and diversion into a rehabilitation program.
[Restatement of the Law (Third) Governing Lawyers (hereinafter “Restatement”) ch. 1,
topic 2, tit. C, introductory note]

D. UNAUTHORIZED PRACTICE AND MULTI-JURISDICTIONAL PRACTICE

The rule against unauthorized practice of law has two prongs: (1) a lawyer is subject to
discipline for practicing in a jurisdiction where she is not admitted to practice, and (2) a
lawyer is subject to discipline for assisting another person in the unlicensed practice of
law. [ABA Model Rule 5.5(a)]

1. Unauthorized Practice by Lawyer

A lawyer who is admitted to practice law in one jurisdiction is not, without more,
authorized to practice in any other jurisdiction. A lawyer is subject to discipline for
practicing in a jurisdiction where she is not admitted to practice. [ABA Model Rule
5.5(a)] Except as allowed by that jurisdiction’s laws or ethics rules, the unadmitted
lawyer must not: (1) represent that she is admitted to practice in that jurisdiction, or
(2) establish an office or other systematic or continuous presence for the practice of
law in that jurisdiction. [ABA Model Rule 5.5(b)]

2. Permissible Types of Temporary Multi-Jurisdictional Practice

The nature of modern law and commerce requires many lawyers to practice across
state lines. ABA Model Rule 5.5(c) recognizes this fact and provides that if a lawyer
is admitted to practice in one state, and is not disbarred or suspended from practice
in any state, then she may provide legal services in a second state on a temporary
basis in four situations:

a. Association with Local Lawyer

A lawyer may practice on a temporary basis in a state in which she is not
admitted if she associates a local lawyer who actively participates in the
matter. [ABA Model Rule 5.5(c)(1)]

EXAMPLE
Attorney A is admitted to practice in State One only, and she works for a law
firm that regularly represents a nationwide labor union. The union is trying to
 PROFESSIONAL RESPONSIBILITY 13.

organize workers in State Two, and A is sent there to give legal advice to the
union’s organizers. With the union’s consent, A associates local labor lawyer L
and rents a temporary office near L’s office. L works actively with A in handling
legal problems arising from the union’s organizing efforts. A’s temporary prac-
tice in State Two is proper.

b. Special Permission to Practice in Local Tribunal

An out-of-state lawyer may request special permission from a local court, admin-
istrative agency, or other tribunal to handle a matter in that tribunal. [ABA Model
Rule 5.5(c)(2)] In a court, such permission is commonly called admission “pro hac
vice,” which means admission for purposes of this matter only. (The rules of many
states require the out-of-state lawyer to associate local counsel as a condition
of pro hac vice admission.) An out-of-state lawyer who reasonably expects to be
admitted pro hac vice may engage in preliminary activities in the state, such as
meeting with clients, reviewing documents, and interviewing witnesses.

EXAMPLE
Toxic tort lawyer L is admitted to practice in Oklahoma only. He has been retained
by three Oklahoma clients to bring a class action on behalf of persons injured by
a herbicide manufactured by a California defendant. L plans to file the class ac-
tion in a California state court, and he reasonably expects to be admitted pro hac
vice to handle the case in that court. It would be proper for L to take a two-week
trip to California to interview other potential class representatives, even though
he has not yet filed the case in California or been admitted pro hac vice.

c. Mediation or Arbitration Arising Out of Practice in Home State

A lawyer may mediate, arbitrate, or engage in another form of alternative
dispute resolution in a state in which she is not admitted to practice if her
services arise out of, or are reasonably related to, her practice in the state in
which she is admitted. [ABA Model Rule 5.5(c)(3)]

EXAMPLE
Attorney A is admitted to practice in State One only. She represents a State One
client in a contract dispute, and the contract states that all such disputes will be
submitted to arbitration in State Two. It is proper for A to represent her client in
the State Two arbitration, and the same would be true of a mediation or other
form of alternative dispute resolution.

d. Other Temporary Practice Arising Out of Practice in Home State

ABA Model Rule 5.5(c)(4) is a catch-all category that permits a lawyer to tempo-
rarily practice out of state if the lawyer’s out-of-state practice is reasonably
related to the lawyer’s home state practice.
14. PROFESSIONAL RESPONSIBILITY

EXAMPLE
Lawyer L is admitted to practice in State One only. He represents a State One
client that buys up and revitalizes run-down shopping centers. That client asks
L to travel to State Two to negotiate with the owner of a State Two shopping
center, and to draft a purchase agreement that will satisfy the owner and that
will be valid under the law of State Two. It would be proper for L to render those
services in State Two.

e. Temporary Practice by Foreign Lawyers

A lawyer who is licensed and in good standing in a foreign jurisdiction may
engage in temporary practice in the United States under circumstances similar to
those described in a. - d., above. Furthermore, a foreign lawyer may provide legal
services temporarily in the United States if the services are governed primarily
by international law or the law of a foreign jurisdiction. [ABA Model Rule for
Temporary Practice by Foreign Lawyers] Foreign lawyers who seek pro hac vice
admission are subjected to greater scrutiny than United States lawyers. Even if
a lawyer is so admitted, the judge has the discretion to limit the foreign lawyer’s
participation in the matter. [ABA Model Rule on Pro Hac Vice Admission]

3. Permissible Types of Permanent Multi-Jurisdictional Practice

A lawyer who is admitted in one United States or foreign jurisdiction, and who is
not disbarred or suspended from practice in any jurisdiction, may open a law office
and establish a systematic and continuous practice in a different jurisdiction in two
narrowly limited situations:

a. Lawyers Employed by Their Only Client

Some lawyers are salaried employees of their only client, e.g., in-house corpo-
rate lawyers and lawyers employed by the government. They may set up a
permanent office to render legal services to their employer in a state in which
they are not admitted to practice, but if they want to litigate a matter in that
state, they must seek admission pro hac vice. [ABA Model Rule 5.5(d)(1)]

EXAMPLE
Attorney A is admitted to practice in Maryland and Virginia. She is employed
by General Motors (“GM”), which assigns her to be the legal advisor in the GM
office in Idaho. A need not be admitted to practice in Idaho, but if she wants to
represent GM in a suit pending in an Idaho court, she must seek admission pro
hac vice.

1) Foreign Lawyers Advising on United States Law

A foreign lawyer practicing under this rule (e.g., serving as in-house counsel
for a corporation) may not directly advise her client on the law of a United
States jurisdiction. Rather, she must consult with a lawyer who is licensed
 PROFESSIONAL RESPONSIBILITY 15.

by the relevant jurisdiction and base any advice to her client on advice she
obtains from the local lawyer.

b. Legal Services Authorized by Federal or Local Law

In rare instances, federal or local law authorizes a lawyer to practice a restricted
branch of law in a state in which he is not otherwise admitted to practice. [ABA
Model Rule 5.5(d)(2)]

EXAMPLE
Lawyer L is admitted to practice law in New York, and he is admitted to prose-
cute patents in the United States Patent and Trademark Office, which is located
in Washington, D.C. When L “retired” and moved to Florida, he did not become
a member of the Florida bar; rather, he set up a Florida practice that is limited to
patent prosecution in the Patent and Trademark Office. L does not handle other
patent matters, such as patent licensing or patent infringement, and he does not
practice any other kind of law. L’s restricted practice in Florida is proper. [See
Sperry v. Florida, 373 U.S. 379 (1963)]

4. Consequences of Multi-Jurisdictional Practice

A lawyer who is admitted to practice in only one jurisdiction but practices in
another jurisdiction pursuant to 2. or 3., above, is subject to the disciplinary rules
of both jurisdictions. [ABA Model Rule 8.5(a); comment 19 to ABA Model Rule
5.5] Furthermore, an in-house or government lawyer who practices under 3.a.,
above, may be subject to the second jurisdiction’s client security assessments and
continuing legal education requirements. [ABA Model Rule 5.5, comment 17]

5. Unauthorized Practice by Nonlawyers

A person not admitted to practice as a lawyer must not engage in the unauthorized
practice of law, and a lawyer must not assist such a person to do so. [ABA Model
Rule 5.5(a); Restatement §4]

a. General Considerations in Defining “Practice of Law”

Important considerations in determining whether the practice of law is involved
include: (1) whether the activity involves legal knowledge and skill beyond that
which the average layperson possesses; (2) whether the activity constitutes
advice or services concerning binding legal rights or remedies; and (3) whether
the activity is one traditionally performed by lawyers. [ABA, Annotated Model
Rule of Professional Conduct 5.5 (9th ed. 2019)]

1) Activities Constituting Law Practice

Examples of activities that courts have found constitute law practice when
done on behalf of another include: appearing in judicial proceedings;
engaging in settlement negotiations; and drafting documents that affect
substantial legal rights or obligations (e.g., contracts, wills, trusts). Preparing
16. PROFESSIONAL RESPONSIBILITY

an estate plan is generally considered the province of lawyers, and some

courts have also held that nonlawyer clinics on how to obtain a low-cost
divorce constitute unauthorized practice.

2) Activities Not Constituting Law Practice

There are some activities that a nonlawyer may undertake that do not
constitute the practice of law. For example, state and federal agencies
often permit nonlawyers, such as accountants, to appear before them
representing clients. Also, while nonlawyers may not draft legal documents,
they can act as scriveners, filling in the blanks on standard forms. Thus,
real estate brokers, title insurance companies, and escrow companies are
usually permitted to fill in the blanks on standard documents related to
the sale of real property. Nonlawyers can also publish books or pamphlets
offering general advice, including most do-it-yourself books and kits.

3) Tax Advice
Giving advice on tax law would probably constitute the unauthorized
practice of law, but an accountant or other layperson may prepare tax
returns and answer questions incidental to the preparation of the returns.

b. Consequences of Unauthorized Practice

A nonlawyer who engages in the unauthorized practice of law is subject to
several sanctions, including injunction, contempt, and criminal conviction.
[Restatement §4, comment a] A lawyer who assists in such an endeavor is
subject to professional discipline.

c. Delegating Work to Nonlawyer Assistants

The rule stated above does not, of course, prohibit a lawyer from delegating
tasks to a paralegal, law clerk, student intern, or other such person. But the
lawyer must supervise the delegated work carefully and must be ultimately
responsible for the results. [ABA Model Rule 5.5, comment 2]

EXAMPLE
Paralegal P is working under attorney A’s supervision on a complex real estate
transaction. P may write and sign letters on the law firm letterhead to make
routine requests for information from banks, mortgage companies, and govern-
mental agencies, provided that P indicates that she is a paralegal, not a lawyer.
But P should not sign letters to clients, adversaries, opposing counsel, or tribu-
nals; she may draft such letters, but they should be approved and signed by A.
That helps assure that A is properly supervising P’s work. [New Jersey Op. 611
(1988)]

d. Training Nonlawyers for Law-Related Work

A lawyer may advise and instruct nonlawyers whose employment requires a
 PROFESSIONAL RESPONSIBILITY 17.

knowledge of the law—e.g., claims adjusters, bank trust officers, social workers,
accountants, and government employees. [ABA Model Rule 5.5, comment 3]

e. Helping Persons Appear Pro Se

A lawyer may advise persons who wish to appear on their own behalf in a legal
matter. [Id.]

EXAMPLE
Client C asked attorney A to represent her in a dispute with her landlord con-
cerning the stopped-up plumbing in her apartment. After hearing C’s explana-
tion, A advised C that she would be able to handle the matter herself in small
claims court at far less expense. A instructed C on how to obtain the proper
forms for small claims court and gave her general advice on what facts to gather
and how to prove her case. A’s conduct is proper.

f. Assisting a Suspended or Disbarred Lawyer

A lawyer violates ABA Model Rule 5.5(a) if he assists a lawyer whose license has
been suspended or revoked in practicing law. It is proper to hire a suspended
or disbarred lawyer to do work that a layperson is permitted to do, but the
suspended or disbarred lawyer must not be permitted to do any work that
constitutes the practice of law.

E. RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY

LAWYERS
1. Partners’ Duty to Educate and Guide in Ethics Matters
The partners or managing lawyers of a law firm (and the supervisory lawyers in a
governmental agency, business, or other group of lawyers) must make reasonable
efforts to assure that the other lawyers adhere to the Rules of Professional Conduct.
[ABA Model Rule 5.1(a); Restatement §11]

2. Duties of Direct Supervisor

A lawyer who directly supervises the work of another lawyer must make reasonable
efforts to assure that the other lawyer adheres to the Rules of Professional Conduct.
[ABA Model Rule 5.1(b)]

3. How Duties Are Fulfilled

The steps necessary to fulfill these two duties depend on the kind and size of the firm
or other group. In a small private law firm, informal supervision and occasional admoni-
tion may be sufficient. In a larger organization, more elaborate steps may be neces-
sary. Some firms provide continuing legal education programs in professional ethics,
and some firms have designated a partner or committee to whom a junior lawyer may
turn in confidence for assistance on an ethics issue. [ABA Model Rule 5.1, comment 3]
18. PROFESSIONAL RESPONSIBILITY

4. Ethical Responsibility for Another Lawyer’s Misconduct

A lawyer is subject to discipline for a disciplinary violation committed by a second
lawyer if:

a. The first lawyer ordered the second lawyer’s misconduct or knew about it and
ratified it; or

b. The first lawyer is a partner or manager or has direct supervisory responsibility

over the second lawyer, and she knows about the misconduct at a time when
its consequences can be avoided or mitigated and fails to take reasonable
remedial action.

[ABA Model Rule 5.1(c)]

EXAMPLES
1) Attorney A is not a partner in the M, N & O firm, but she is a senior associate and
has been assigned direct supervisory responsibility for the work of junior associ-
ate J in the case of Cox v. Fox. A told J to interview Ms. Cox and to prepare her to
have her deposition taken. In a fit of misdirected zeal, J advised Ms. Cox to testify
to a patent falsehood. After the Cox deposition was taken, but while Ms. Cox was
still available as a witness, A discovered what had happened. A made no effort
to reopen the Cox deposition or otherwise remedy J’s misconduct. A is subject to
discipline.
2) In the Cox v. Fox example, above, suppose that M, a partner in the firm, is not J’s
supervisor and has no connection whatever with the Cox v. Fox case. In a casual
lunchtime conversation with J, M learned that J had advised Ms. Cox to testify falsely
at her deposition. M made no effort to rectify the consequences of J’s misconduct. M
is subject to discipline.

F. RESPONSIBILITIES CONCERNING NONLAWYER ASSISTANCE

1. Duty to Educate and Guide in Ethics Matters
Law firms, governmental and business law departments, and other groups of
lawyers employ many kinds of nonlawyers—secretaries, investigators, parale-
gals, law clerks, messengers, and law student interns. Lawyers who work with
such employees—whether those nonlawyers are within or outside the firm—must
instruct them concerning the ethics of the profession and should be ultimately
responsible for their work. [ABA Model Rule 5.3, comment 1]

2. Duty of Partners Respecting Nonlawyer Employees

The partners and managers in a law firm (and the supervisory lawyers in a
 PROFESSIONAL RESPONSIBILITY 19.

governmental agency, business, or other group of lawyers) must make reasonable

efforts to assure that the conduct of the nonlawyers is compatible with the obliga-
tions of the profession. [ABA Model Rule 5.3(a)]

EXAMPLE
Lawyer L hired secretary S without carefully checking her background. L put S in
charge of his client trust fund account, but did not carefully supervise her bookkeep-
ing procedures. S stole a substantial sum from the account. L failed to fire S even
after he discovered her theft. L is subject to discipline for gross negligence. [See In
re Scanlan, 697 P.2d 1084 (Ariz. 1985)]

3. Duties of Direct Supervisor Respecting Nonlawyer Employees

A lawyer who directly supervises the work of a nonlawyer employee must make
reasonable efforts to assure that the conduct of the nonlawyer is compatible with
the obligations of the profession. [ABA Model Rule 5.3(b); Restatement §11(4)]

EXAMPLE
Deputy Public Defender D directly supervises the work of her secretary, S, and her
investigator, I. D must instruct S and I about the need to keep clients’ information in
confidence, and D must make reasonable efforts to assure that they do so.

4. Ethical Responsibility for Nonlawyer’s Misconduct

A lawyer is subject to discipline in two situations when a nonlawyer does something
that, if done by a lawyer, would violate a disciplinary rule. The lawyer is subject to
discipline if:

a. The lawyer ordered the conduct or knew about it and ratified it; or

b. The lawyer is a partner or manager or has direct supervisory responsibility over

the nonlawyer, and the lawyer knows about the misconduct at a time when
its consequences can be avoided or mitigated and fails to take reasonable
remedial action.

[ABA Model Rule 5.3(c)]

G. RESPONSIBILITIES OF A SUBORDINATE LAWYER

1. Duties Concerning Clear Ethics Violation
Orders from a supervisory lawyer are no excuse for clearly unethical conduct—a
lawyer must follow the ethics rules even when acting under the directions of another
person. [ABA Model Rule 5.2; Restatement §12] However, the fact that a subordinate
lawyer was acting on directions from a supervisor may be relevant in determining
20. PROFESSIONAL RESPONSIBILITY

whether the subordinate had the knowledge that is required for some ethics viola-
tions. [ABA Model Rule 5.2, comment 1]

EXAMPLE
Partner P gave associate A a memorandum of fact and asked A to draft a complaint
for fraud based on the information in the memorandum. A had no way to know
whether the information in the memorandum was complete and truthful. A’s lack of
opportunity to gather the facts personally is relevant in deciding whether to disci-
pline A for participating in the filing of a frivolous complaint.

2. Duties Concerning Debatable Ethics Questions

A subordinate lawyer does not violate the rules of professional conduct by acting
in accordance with a supervisor’s reasonable resolution of an arguable question of
professional duty. When a debatable ethics question arises, someone must decide
on a course of action, and that responsibility must rest with the supervisory lawyer.
If the supervisor’s judgment turns out to have been wrong, the subordinate lawyer
should not be disciplined for doing what the supervisor directed. [ABA Model Rule
5.2 and comment 2]

EXAMPLE
Subordinate lawyer L was assisting supervisor S on a summary judgment motion in a
products disparagement case. When drafting the reply memorandum on the motion,
L stumbled across a new appellate decision in the controlling jurisdiction concern-
ing libel and slander of persons. The new decision had not been cited by S and L’s
adversary. S and L’s duty to call the new decision to the attention of the trial judge
depends on whether it is “directly adverse” to their position. L argues that the law
of products disparagement and the law of personal libel and slander are so closely
related that the new decision must be considered “directly adverse.” S, on the other
hand, argues that the two bodies of law are similar only by crude analogy. On this
debatable point of ethics, the responsibility for making the final decision rests with S,
and L should not be disciplined for following S’s instructions not to mention the new
decision in the reply memorandum.

H. PROFESSIONAL INDEPENDENCE OF A LAWYER

1. Fee Splitting with Nonlawyers and Temporary Lawyers
Except as provided below, a lawyer must not share her legal fee with a nonlawyer.
[ABA Model Rule 5.4(a); Restatement §10] The purpose of this rule is ill-defined, but
it is said to help “protect the lawyer’s professional independence of judgment.” [ABA
Model Rule 5.4, comment 1] Obviously, the salaries of nonlawyer employees of a firm
are paid with money earned as legal fees, but that is not regarded as “sharing” a
fee. Furthermore, a firm can employ temporary lawyers through a placement agency
without violating the fee-splitting rule.
 PROFESSIONAL RESPONSIBILITY 21.

EXAMPLE
Lawyer L wants to practice law part-time, doing work for law firms that need extra
temporary help. L gives copies of her resume to LawTemp, Inc., a placement agency
that is owned by nonlawyers. When law firms need extra help, they call LawTemp,
which sends them resumes of several available lawyers. By this route, L obtains
temporary work at a firm that agrees to pay her $100 per hour for her work and to
pay LawTemp a “placement fee” equal to 5% of the total amount it pays to L. The law
firm’s bill to its client includes the amount the firm pays to L and the “placement fee”
paid to LawTemp. This arrangement is proper. [ABA Formal Op. 88-356 (1988)]

a. Death Benefits Permitted

The lawyers in a firm may agree that, when one of them dies, the others will pay
a death benefit over a reasonable period of time to the dead lawyer’s estate or
to designated persons. [ABA Model Rule 5.4(a); Restatement §10]

EXAMPLE
The R, S & T firm set up a death benefit program. After a partner or associate
dies, the firm will make monthly payments to her estate for three years after the
death, each payment to equal 40% of her average monthly income during the
year before death. The death benefit program is proper.

b. Compensation and Retirement Plans for Nonlawyer Employees

The nonlawyer employees of a firm may be included in a compensation or
retirement plan even though the plan is based on a profit-sharing arrangement.
[Id.]

EXAMPLE
The U, R & S firm sets aside 10% of all legal fees in a fund to be used for year-
end bonuses to the partners, associates, and nonlawyer employees. The year-
end bonus program is proper, even though it is a profit-sharing arrangement
with nonlawyers.

c. Sale of a Law Practice

One lawyer’s practice can be sold to another lawyer pursuant to rules that are
discussed in J., infra. One who buys the practice of a dead, disabled, or disap-
peared lawyer may pay the purchase price to the estate or representatives of
the lawyer. [ABA Model Rule 5.4(a); Restatement §10]

d. Sharing Court-Awarded Fee with Nonprofit Organization

When a court awards attorneys’ fees to the winning lawyer in a case, the lawyer
may share the fee with a nonprofit organization that hired or recommended him
as counsel. [Id.]
22. PROFESSIONAL RESPONSIBILITY

EXAMPLE
Justice International, a nonprofit organization, hired lawyer L to represent a
class of persons who were imprisoned after 9/11 in violation of their civil rights. L
won the case, and the court awarded her attorney fees to be paid by the defen-
dants. L may share the fees with Justice International.

2. Partnership with Nonlawyer to Practice Law Prohibited

A lawyer must not form a partnership with a nonlawyer if any part of the partnership
activities will constitute the practice of law. [ABA Model Rule 5.4(b)] Distinguish this
from ancillary services provided by a separate entity (see K., infra).

EXAMPLE
Family lawyer F formed a partnership with marital psychologist P; their purpose was
to offer a full range of counseling and legal services to family clients. All of the legal
work was done by F, and all of the other counseling was done by P—neither trans-
gressed into the domain of the other. Nevertheless, F is subject to discipline be-
cause part of the partnership activity constitutes the practice of law.

3. Nonlawyer Involvement in Incorporated Firm or Other Association

A lawyer must not practice in an incorporated law firm or association authorized to
practice law for profit if:

a. A nonlawyer owns any interest in the firm or association (but, when a lawyer
dies, her estate may hold an interest during the administration of the estate);

b. A nonlawyer is a corporate director or officer or the equivalent thereof; or

c. A nonlawyer has the right to direct or control the professional judgment of a

lawyer.

[ABA Model Rule 5.4(d)]

EXAMPLE
M is a nonlawyer. She is the business manager of W, Y & U Ltd., an incorporated law
firm. As business manager, she keeps the firm’s calendar, does the firm’s accounting,
hires, fires, and supervises all of the firm’s nonlawyer employees, procures all of the
firm’s supplies and equipment, and runs the firm’s library. Despite M’s central role in
the firm’s operations, M cannot become a stockholder in the firm.

4. Interference with Lawyer’s Professional Judgment

A lawyer must not allow a person who recommends, employs, or pays her for serving a
client to direct or regulate the lawyer’s professional judgment. [ABA Model Rule 5.4(c)]
 PROFESSIONAL RESPONSIBILITY 23.

EXAMPLE
Federated Life Insurance Company employs lawyer L to prepare estate plans for po-
tential life insurance customers. The potential customer pays nothing for the estate
planning service; L works on a flat salary paid by Federated. L, realizing who pro-
vides his daily bread, makes sure that every estate plan includes a careful explana-
tion of the “benefits of balanced protection through Federated’s term and whole life
policies.” L is subject to discipline.

I. RESTRICTIONS ON RIGHT TO PRACTICE

1. Restrictive Partnership and Employment Agreements
A lawyer must neither make nor offer a partnership or employment or similar agree-
ment that restricts a lawyer’s right to practice after termination of the relationship,
except for an agreement concerning benefits upon retirement. [ABA Model Rule
5.6(a); Restatement §13] Such agreements not only limit a lawyer’s autonomy but also
limit the freedom of clients to choose a lawyer.

EXAMPLES
1) Oakville practitioner A employed young lawyer L by an agreement that purported
to prohibit L from practicing in Oakville after leaving A’s employment. Both A and L
are subject to discipline.
2) Sixty-four-year-old solo practitioner S took young lawyer Y in as a partner. Their
partnership agreement provided that after S retired, the firm would pay S a retire-
ment benefit of $5,000 per month so long as S did not re-enter the practice of law.
The agreement is proper.

2. Restrictive Settlement Agreements for Clients

A lawyer must neither make nor offer an agreement in which a restriction on the
lawyer’s right to practice is part of the settlement of a client controversy. [ABA Model
Rule 5.6(b); and see ABA Formal Op. 93-371 (1993)]

EXAMPLE
Over a period of several years, attorney A represented a series of federal employ-
ees in personal injury suits against the federal government concerning cancers
allegedly caused by working in the Dos Arboles Radiation Laboratory. The govern-
ment settled each suit as it came along, but the more suits the government settled,
the more new plaintiffs A was able to find. Ultimately, the government offered to
settle all then-pending suits for generous sums, provided that A would never again
represent a claimant in a Dos Arboles Radiation case. If A agrees to settle on those
terms, A will be subject to discipline. [See ABA Formal Op. 95-394 (1995)]
24. PROFESSIONAL RESPONSIBILITY

J. SALE OF A LAW PRACTICE

1. When Sale Permitted
ABA Model Rule 1.17 permits the sale of a law practice or a field of law practice,
including goodwill, under certain circumstances. Pursuant to this rule: (1) the seller
must cease to engage in the private practice of law, or in the sold field of practice,
in the area where the practice has been conducted; (2) the entire practice, or the
entire field of practice, must be sold to one or more lawyers or firms; and (3) written
notice must be given to the seller’s clients regarding the sale, the clients’ right to
retain other counsel or to take possession of their files, and the fact that consent
to the transfer of the clients’ files will be presumed if a client takes no action within
90 days of receipt of the notice. If notice cannot be given to a client, a court order
is required to authorize the transfer of the representation of that client to the
purchaser. [ABA Model Rule 1.17(c)] Also, the seller must “exercise competence in
identifying a purchaser qualified to assume the practice.” [ABA Model Rule 1.17,
comment 11]

a. Selling Lawyer May Practice in Limited Circumstances

After the sale of his practice, a lawyer may still be employed as a lawyer on the
staff of a public agency or legal services entity that provides legal services to
the poor, or as in-house counsel to a business. [ABA Model Rule 1.17, comment
3] Additionally, a lawyer’s return to private practice because of an unanticipated
change in circumstances does not necessarily violate the Rules. [ABA Model
Rule 1.17, comment 1]

2. Protection of Seller’s Clients After Sale

The purchaser must undertake all client matters in the practice, and not just those
that generate substantial fees (subject of course to client consent and conflict of
interest rules). [See ABA Model Rule 1.17, comment 6] This requirement prevents the
sale of only fee-generating matters, which could leave clients whose matters are not
very lucrative in a situation where they might find it difficult to find other representa-
tion. Also, clients’ fees must not be increased because of the sale. [ABA Model Rule
1.17(d)] The purchaser must honor existing fee agreements made by the seller. [ABA
Model Rule 1.17, comment 10]

K. LAW-RELATED (ANCILLARY) SERVICES

Lawyers are permitted to provide law-related services. Law-related services (often
referred to as ancillary services) are services that might reasonably be performed in
conjunction with (and are related to) the provision of legal services and that are not
prohibited as unauthorized practice of law when provided by a nonlawyer. Examples
of law-related services include financial planning, accounting, lobbying, trust services,
real estate counseling, providing title insurance, and preparing tax returns. Even though
law-related services are not legal services, a lawyer who provides such services is
subject to the Rules of Professional Conduct in two situations:
 PROFESSIONAL RESPONSIBILITY 25.

1. Nonlegal Services and Legal Services Provided Together

If a lawyer provides nonlegal services in circumstances that are not distinct from her
provision of legal services, then the Rules of Professional Conduct apply to both the
legal and nonlegal services. [ABA Model Rule 5.7(a)(1)]

EXAMPLE
Attorney A is an expert in setting up new business ventures. He also knows many
wealthy people who invest money in untried business ventures—so-called venture
capitalists. When A draws up the articles of incorporation for client C’s new business
venture and also finds some willing investors for C, A is subject to the Rules of Pro-
fessional Conduct in both activities.

2. Nonlegal Services Provided by Entity that Is Controlled by the Lawyer

If a lawyer provides nonlegal services through an entity that is not her law office but
that she controls (either alone or with other lawyers), that lawyer must take reasonable
steps to assure that people who receive the nonlegal services understand that those
services are not legal services and that the Rules of Professional Conduct do not
cover those services. For instance, the attorney-client privilege does not apply to the
nonlegal services. If the lawyer does not take those reasonable steps, then the lawyer
is subject to the Rules of Professional Conduct with respect to the nonlegal services.

EXAMPLE
Lawyer L is a certified specialist in family law. Many of her clients are women who
want to divorce their husbands and also want to find work outside the home. L and
one of her nonlawyer friends own and manage Jobs-4-U, a job placement service.
When one of her law clients needs a job, L usually refers the client to Jobs-4-U. L is
always careful to tell the client that she has a personal financial stake in Jobs-4-U,
but L does not explain that the Rules of Professional Conduct do not apply to servic-
es rendered by Jobs-4-U. L is therefore bound by the Rules of Professional Conduct
in her job placement work.

3. Providing Nonlegal Services to Clients

When a client-lawyer relationship exists between the lawyer and the individual
receiving the law-related services, the lawyer must comply with Rule 1.8(a), which
specifies the conditions a lawyer must satisfy when she enters into a business trans-
action with her own client. [ABA Model Rule 5.7, comment 5] Specifically, the trans-
action must meet the following requirements: the terms of the transaction must be
fair to the client; the terms must be fully disclosed to the client in writing, and such
disclosure must cover the essential terms of the transaction and the lawyer’s role
in the transaction; the client must be advised in writing that he should seek advice
from an independent lawyer regarding the arrangement; and the client must give
informed consent in a writing signed by the client. (See also IV.C.2.a., supra.)
26. PROFESSIONAL RESPONSIBILITY

II. THE CLIENT-LAWYER RELATIONSHIP

A. NATURE OF THE RELATIONSHIP

The relationship between a lawyer and client is contractual. The terms of that contract
are generally implied by custom, but for the most part can be varied by mutual agree-
ment. The lawyer operates as both the client’s fiduciary and agent, with the duties and
limitations of those designations. For example, because the lawyer is considered a
fiduciary, the contract between the lawyer and client will be construed against the lawyer
and closely scrutinized for fairness. Similarly, the lawyer is subject to the limitations
imposed by the laws of agency.

B. CREATING THE LAWYER-CLIENT RELATIONSHIP

1. How Relationship Is Formed
In lore, although perhaps not in fact, an English barrister has an ethical duty to take
any case offered upon tender of a proper fee. [Wolfram, Modern Legal Ethics §10.2.2
(1986)] In contrast, lawyers in the United States are generally free to refuse service to
any person for any reason. A lawyer-client relationship arises when:

(i) A person manifests an intent that the lawyer provide legal services and the
lawyer agrees;

(ii) A person manifests an intent to have the lawyer represent him, the lawyer fails
to make clear that he does not want to undertake the representation, and the
lawyer knows or should know that the prospective client is reasonably relying
on the lawyer to provide the services; or

(iii) A tribunal appoints a lawyer to represent a client.

[Restatement §14]

a. Implied Assent and Reasonable Reliance

The lawyer’s assent is implied when he fails to clearly decline representation
and the prospective client reasonably relies on the representation. The reason-
ableness of the reliance is a question of fact.

EXAMPLES
1) Client Carla writes a letter to attorney Aida, asking Aida to represent her in a
personal injury case. Aida never responds to the letter. One year later, the stat-
ute of limitations expires on Carla’s claim, and she sues Aida for malpractice for
failing to file the suit. Here, there was no attorney-client relationship. Although
Aida did not expressly decline the representation, it was unreasonable for Carla
to rely on Aida’s representation based on an unanswered letter. [See Restate-
ment §14, illus. 3]
 PROFESSIONAL RESPONSIBILITY 27.

2) Client Casey calls lawyer Lisa’s office asking that Lisa represent him in a court
proceeding relating to his arrest for driving under the influence (“DUI”). Lisa
is out of the office. Casey tells Lisa’s secretary that he understands that Lisa
handles many DUI cases and hopes that she will take the case even though
the court date is only 10 days away. The secretary tells Casey to send over all
papers relevant to the proceeding. She does not tell him that Lisa will decide
whether to take the case only after reviewing the papers. One day before
Casey’s court date, Lisa phones Casey and declines to represent him. Here,
it would likely be found that an attorney-client relationship existed because
Casey’s reliance was reasonable. Lisa regularly handled DUI cases, her agent
responded to his request for help by asking him to send the papers, and the im-
minence of the hearing made it appropriate for Lisa to decline while there was
still time for Casey to get another lawyer. [Restatement §14, illus. 4]

2. Duty to Reject Certain Cases

A lawyer must refuse employment in the following situations, as taking on a repre-
sentation in these circumstances would violate the Rules of Professional Conduct.

a. Client’s Motive Is Harassment

A lawyer is subject to discipline for bringing an action, conducting a defense,
asserting a position, or taking other steps if the client’s motive is to embarrass,
delay, or burden a third person. [ABA Model Rule 4.4(a)] Thus, a lawyer must
reject any case where he believes this is the prospective client’s motive.

b. Unsupportable Factual or Legal Position

A lawyer who is serving as an advocate in a legal proceeding must not take
a position that is either factually or legally frivolous. [ABA Model Rule 3.1] A
position is not frivolous if the lawyer can make a good faith argument that the
facts are as claimed or that the present law should be changed. A position also
is not frivolous merely because the lawyer does not have all the facts at hand at
the outset, but expects to develop them during discovery. Note that in a criminal
case, the defense lawyer may defend his client to the extent allowed by consti-
tutional law even if the defense would otherwise violate this rule. [ABA Model
Rule 3.1, comments 1 - 3; and see VI.A., infra]

c. Lawyer Not Competent

A lawyer must reject a case if he is too busy or too inexperienced to handle the
matter competently. [ABA Model Rule 1.1]

d. Strong Personal Feelings

If a lawyer’s personal feelings about a case are so strong that they would impair
his ability to effectively represent the client, he must refuse the case. [ABA
Model Rules 1.16(a)(1), 1.7(a)(2)]
28. PROFESSIONAL RESPONSIBILITY

e. Impaired Mental or Physical Condition

A lawyer must decline a case if his mental or physical condition would materially
impair his ability to represent the client. [ABA Model Rule 1.16(a)(2)]

3. Duties Owed to Prospective Client

When a person consults with a lawyer about the possibility of forming a lawyer-client
relationship, and no such relationship ensues, the lawyer has a duty to: (1) protect the
prospective client’s confidential information, which includes declining to represent
other clients in the same or a related matter if the confidential information would
be harmful to the prospective client; (2) protect any property the prospective client
has given to the lawyer; and (3) use reasonable care in giving the person any legal
advice, such as whether the claim has merit, whether conflicts of interest exist, and
when the action must be commenced. [Restatement §15]

4. Ethical Obligation to Accept Unpopular Cases

Lawyers have an ethical obligation to help make legal service available to all who
need it. A lawyer can fulfill this obligation by accepting a fair share of unpopular
matters or indigent or unpopular clients. [ABA Model Rule 6.2, comment 1]

C. ATTORNEYS’ FEES
The nature and amount of an attorney’s fee are subjects for contractual agreement
between the attorney and the client (except when the fee is set by statute or court order).
In theory, the attorney and client bargain at arm’s length over the fee, but in practice
many clients are inexperienced with attorneys’ fees. Thus, in fee disputes, courts strain to
give the benefit of the doubt to the client. [See, e.g., Terzis v. Estate of Whalen, 489 A.2d
608 (N.H. 1985); with respect to fee setting in general, see Restatement §§34 - 43]

1. Must Communicate Fee Arrangement to Client

A lawyer must, before or within a reasonable time after commencing a representa-
tion, communicate the basis or rate of the fee and the expenses for which the client
will be responsible. Although a writing is preferable, it is generally not required
(except in contingent fee agreements, infra). The lawyer also has an ongoing duty to
communicate any changes regarding the fee arrangement. [ABA Model Rule 1.5(b)]

a. Exception—Regularly Represented Client

If the lawyer regularly represents the client and will be charging the same basis
or rate as in other matters, the lawyer need not communicate the fee arrange-
ment each time.

EXAMPLES
1) At the close of her first appointment with a new client, attorney A gave the client
a simple written memorandum. The memorandum explained that her fee would be
calculated at $175 per hour, and that the number of hours could not be predicted
with certainty but would probably be about 100. Later, when the matter proved more
 PROFESSIONAL RESPONSIBILITY 29.

difficult than A had anticipated, A gave the client a supplemental memorandum that
doubled the estimated number of hours. A handled the fee issue properly under the
ABA Model Rules.
2) At the end of his third appointment with lawyer L, a new client asked how L
planned to charge him for the work. L responded: “In a matter of this nature, it’s
simply impossible to tell you in advance what the fee will be. But you have my assur-
ance that it will be a fair fee.” L’s conduct is a disciplinary violation under ABA Model
Rule 1.5(b).

2. Discipline for Unreasonable Fee

A court will not enforce a contract for an unreasonably high attorney’s fee or an
unreasonably high amount for expenses, and the attorney is subject to discipline for
trying to exact such a fee or expenses. [ABA Model Rule 1.5(a)]

a. Factors
The factors considered in determining the reasonableness of a fee are:

1) The time and labor required;

2) The novelty and difficulty of the questions involved;

3) The skill needed to perform the legal services properly;

4) The likelihood, if apparent to the client, that the work for this client will
preclude the lawyer from doing fee-paying work for others;

5) The fee customarily charged in the locality for similar legal work;

6) The amount at stake and the results obtained for the client;

7) The time limitations imposed by the client or the circumstances;

8) The nature and length of the relationship between the lawyer and the
client;

9) The experience, reputation, and ability of the lawyer performing the

services; and

10) Whether the fee is fixed or contingent (a contingent fee can be higher
because it requires the lawyer to take a gamble).

[ABA Model Rule 1.5(a)]

b. Items that May and May Not Be Billed

The attorney must disclose the basis on which a client will be charged for legal
30. PROFESSIONAL RESPONSIBILITY

services and expenses, and the attorney’s bill should clearly show how the
amount due has been computed. The attorney must not charge the client for
ordinary overhead expenses associated with staffing, equipping, and running
the attorney’s office, but the attorney may charge the client for the actual
cost to the attorney of special services such as photocopying, long distance
calls, computer research, special deliveries, secretarial overtime, and the
like. [Restatement §38(3)(a)] Alternatively, the attorney may charge a reason-
able amount to which the client has agreed in advance. [ABA Model Rule 1.5,
comment 1] The attorney must not charge the client more than her actual cost
for services provided by third parties, such as court reporters, travel agents, and
expert witnesses. Furthermore, the attorney must not “double bill” her time. [See
ABA Formal Op. 93-379 (1993)]

EXAMPLE
Attorney spends three hours working on client A’s case while flying on an air-
plane to take depositions in client B’s case. Attorney must not bill B for three
hours of travel time if she elects to bill A for three hours of work time. She may
charge either one or the other for the full three hours, or she may apportion the
time between the two clients.

3. Collecting and Financing Attorneys’ Fees

a. Payment in Advance
A lawyer may require her fee to be paid in advance, but she must refund any
unearned part of the advance if she is fired or withdraws. [ABA Model Rule 1.16(d);
comment 4 to ABA Model Rule 1.5; and see G.5., infra] Be careful to distinguish
a true retainer fee from a payment of a fee in advance. A true retainer fee is
money that is paid solely to ensure the availability of the lawyer, and the lawyer
who is fired or withdraws generally need not refund the retainer fee.

EXAMPLES
1) XYZ Oil Company pays the A & B environmental defense firm a monthly re-
tainer fee of $1,000 simply to be available to represent XYZ in the case of an oil
spill. The retainer fee agreement provides that the $1,000 per month will not be
credited against hours spent on XYZ’s legal work. This is a true retainer fee. If
the A & B firm withdraws or is fired from a particular case, it may keep the re-
tainer payments provided: (1) the retainer amount was reasonable, and (2) it has
not violated the retainer agreement.
2) Lawyer L agreed to represent client C in a divorce case for $100 per hour.
L’s written fee contract with C provided that C would pay L a $2,500 “non-
refundable retainer” and that the retainer would be “credited against C’s
charges.” C fired L after L did $1,000 worth of work on the case, but L refused
 PROFESSIONAL RESPONSIBILITY 31.

to refund any part of the retainer. L must refund $1,500 to C; the fee contract
does not clearly explain the meaning of “nonrefundable retainer,” and it ought
to be construed against L, who drafted it. [See Jacobson v. Sassower, 66
N.Y.2d 991 (1985)]

b. Property for Services

A lawyer may accept property in return for services (e.g., an ownership interest
in a business), provided that this does not involve a proprietary interest in the
cause of action or subject of litigation contrary to ABA Model Rule 1.8(i) (see
IV.C.3., infra). Such an arrangement is also subject to scrutiny as a conflict of
interest because it may be a business transaction between the lawyer and the
client (see IV.C.2., infra). [ABA Model Rule 1.5, comment 4]

c. Cutting Off Services

A lawyer must not make a fee agreement that could curtail services in the
middle of the relationship and thus put the client at a bargaining disadvantage.
[ABA Model Rule 1.5, comment 5]

EXAMPLE
Attorney A agreed to defend client D in a drug smuggling case. A clause buried
in the middle of A’s wordy fee agreement provides that all work must be paid for
in advance. D paid A $2,000 in advance. In the middle of preparation for trial, A
told D that the original advance was used up and that if D did not advance more
money, the work would stop. A’s conduct is not proper. [Id.; and see State v.
Mayes, 531 P.2d 102 (Kan. 1975)]

d. Credit Arrangements and Security

A lawyer may permit the client to pay a legal fee by credit card [ABA Formal Op.
00-419 (2000)], and a lawyer may participate in a bar association program that
enables clients to finance fees through bank loans. A lawyer may also take an
interest-bearing promissory note from a client to secure the payment of fees.
[See Hulland v. State Bar, 8 Cal. 3d 440 (1972)] When permitted by local law, a
lawyer may use a statutory, common law, or contractual attorney’s lien to secure
the payment of a fee. [ABA Model Rule 1.8(i)(1)]

4. Contingent Fees
Under a contingent fee agreement, the lawyer collects a fee only if the matter is
resolved in the client’s favor. Often, the fee is expressed as a percentage of the
client’s eventual recovery in the case. However, a contingent fee need not be a
percentage of the amount recovered; an otherwise proper contingent fee may still
be proper even if there is no res, or pool of money, from which the fee can be paid.
Contingent fees are regarded as unethical in some common law countries, but
they are tolerated in the United States. Critics contend that they stir up litigation,
32. PROFESSIONAL RESPONSIBILITY

encourage excessive fees, and give the lawyer an unprofessional stake in the
outcome of the case. Proponents reply that only through a contingent fee arrange-
ment can a client of modest means afford to litigate a claim. Some states have set
statutory limits on the contingent fee percentages a lawyer can exact in personal
injury, medical malpractice, and similar types of cases.

a. When Contingent Fee Prohibited

1) Criminal Cases
A lawyer is subject to discipline for using a contingent fee arrangement
when defending a person in a criminal case. [ABA Model Rule 1.5(d)(2)]

2) Domestic Relations Cases

A lawyer is also subject to discipline for using a contingent fee in a
domestic relations case when the contingency is based on the securing of
a divorce, the amount of alimony or support, or the amount of a property
settlement. However, a lawyer may use a contingent fee in a suit to recover
money that is past due under an alimony or support decree. [ABA Model
Rule 1.5 and comment 6]

EXAMPLE
Lawyer L agreed to represent W in a marital dissolution case in exchange
for 10% of the amount to be received by W as a property settlement. The
arrangement would subject L to discipline.

b. Contingent Fee Must Be Reasonable

A contingent fee must be reasonable in amount; moreover, a lawyer must not
use a contingent fee when the facts of the case make it unreasonable to do so.
[ABA Model Rule 1.5, comment 3]

EXAMPLE
Client C asked lawyer L to represent her as plaintiff in a medical malpractice
case. Liability was clear, the damages were large, and the defendants were
affluent. The case was a clear winner, and L knew that he could settle it with
only a few hours of work. Nonetheless, L signed C up to a 33% contingent fee
agreement. After two hours of work, L arranged a lucrative settlement that C ac-
cepted. It was unreasonable for L to use a contingent fee agreement in the first
place, and it would be unreasonable for L to collect one-third of the settlement
proceeds. [See ABA Model Rule 1.5, comment 3]

c. Writing Requirement for Contingent Fee Agreements

A contingent fee agreement must be in a writing signed by the client, and the
writing must state:
 PROFESSIONAL RESPONSIBILITY 33.

1) How the fee is to be calculated, including the percentage that the lawyer
will get if the case is settled before trial, won after trial, or won after appeal;

2) What litigation and other expenses are to be deducted from the recovery;

3) Whether deductions for expenses will be made before or after the contin-
gent fee is calculated; and

4) What expenses the client must pay, whether or not she wins the case.

At the end of a contingent fee case, the lawyer must give the client a written
statement showing the outcome of the case, the remittance to the client, and
how the remittance was calculated. [ABA Model Rule 1.5(c)]

5. Fee Disputes

a. In General
In seeking compensation from a client, a lawyer may not employ collection
methods forbidden by law, improperly use confidential information, or harass a
client. [Restatement §41]

b. Remedies

1) Liens
In addition to filing a lawsuit to recover their fees, lawyers have several
remedies if a client refuses to pay all or a portion of a fee. Most states
recognize a common law or statutory charging lien, under which any
recovery obtained for the client serves as security for the lawyer’s fees.
Even states that do not recognize a charging lien usually recognize such a
lien if created by the lawyer and client’s express agreement. [3 A.L.R.2d 148
(1949)] Many states also permit the lawyer to exercise a retaining lien, under
which he can retain documents, funds, and property of the client until his
fee is paid, but there is a strong minority view contra.

2) Retention of Funds in Trust Account

If a lawyer receives funds on behalf of a client from which his fee is to be paid
(e.g., a settlement check), and the client disputes the amount of his fee, the
lawyer must retain the disputed amount in a client trust account (IX.C.2.b.,
infra) until the dispute is resolved. [ABA Model Rule 1.15(e) and comment 3]

3) Arbitration or Mediation
Bar associations in many jurisdictions have established arbitration or
mediation services to help lawyers resolve fee disputes with their clients.
Comment 9 to ABA Model Rule 1.5 urges lawyers to use these services
when they are available.
34. PROFESSIONAL RESPONSIBILITY

EXAMPLE
Lawyer L’s standard retainer agreement includes a provision that requires
arbitration of both fee disputes and legal malpractice claims. The agree-
ment is proper, provided that it is clear and that L’s clients truly understand
its ramifications. [District of Columbia Bar Op. 190 (1988)]

6. Fee Splitting with Other Lawyers

As a general rule, a lawyer must not split a legal fee with another lawyer. The rule
is designed to prevent lawyers from becoming “client brokers” and to discourage
excessive fees. The general rule is subject to three exceptions.

a. Lawyers Within a Firm

The partners and associates within a law firm may, of course, pool and split legal
fees—that is the essence of practice in a law firm.

b. Separation and Retirement Agreements

A law firm may make payments to a former partner or associate under a separa-
tion or retirement agreement.

EXAMPLE
The partnership agreement of the P, D & Q law firm provides that when partner Q
retires, the firm will pay her monthly benefits equal to 30% of Q’s average month-
ly billings during the year prior to her retirement. The arrangement is proper.

c. Certain Splits with Lawyers Outside Firm

Sometimes two or more lawyers from different firms work together on a case.
ABA Model Rule 1.5(e) permits them to submit a single bill to the client, and then
to split the fee, if the following conditions are met:

1) The total fee is reasonable;

2) The split is in proportion to the services performed by each lawyer, or

some different proportion if each lawyer assumes joint responsibility for
the matter; and

3) The client agrees to the split in a writing that discloses the share each
lawyer will receive.

EXAMPLE
In a complex corporate tender offer matter that involves both antitrust and se-
curities law issues, lawyers from three firms join forces to represent Grundy, Inc.
Lawyers from firm A will do whatever courtroom work needs to be done. Lawyers
from firm B will do the out-of-court work on the antitrust issues, and lawyers from
 PROFESSIONAL RESPONSIBILITY 35.

firm C will do the out-of-court work on the securities law issues. The three firms
do not agree to assume joint responsibility for the matter, but they agree to send
Grundy, Inc. a single bill and to divide the proceeds in proportion to the work
done by each firm. Grundy, Inc. is advised of the arrangement and consents to it
in writing. Assuming that the total fee is reasonable, the arrangement is proper.

7. True Referral Fees Are Unethical

Referral of cases between lawyers is common, for instance, when the referring
lawyer is too busy to handle a case or does not feel competent to handle a case.
However, ABA Model Rule 7.2(b) prohibits a lawyer from paying anyone—including
another lawyer—for recommending him or referring a matter to him. Furthermore,
ABA Model Rule 1.5(e) does not permit fee splitting with a referring lawyer who
neither assumes responsibility for a matter nor does work on the matter (see 7.c.,
above). A lawyer may, however, set up a “reciprocal referral” arrangement with
another lawyer or with a nonlawyer professional in which each person agrees to
refer clients or customers to the other. The arrangement must not be exclusive, and
the lawyer’s client must be informed of the existence and nature of the arrangement.
[ABA Model Rule 7.2(b) and comment 8] These reciprocal referral arrangements are
discussed further in X.B.1.c., infra.

D. SCOPE AND BOUNDS OF REPRESENTATION

Generally, a lawyer must abide by a client’s decisions concerning the objectives of a
representation, and must consult with the client as to the means by which those objec-
tives are pursued. A lawyer also may take actions that are impliedly authorized to carry
out the representation. [ABA Model Rule 1.2(a)]

1. May Limit Scope of Representation

A lawyer may limit the scope of the representation if: (1) the limitation is reasonable
under the circumstances, and (2) the client gives informed consent. For example, a
lawyer might agree to counsel her client about a dispute with the client’s landlord,
but stipulate that if the dispute has to be arbitrated or litigated, the client will hire
another lawyer for that purpose. [ABA Model Rule 1.2(c) and comment 7]

2. Must Not Assist Client in Crime or Fraud

A lawyer must not advise a client to engage in conduct that the lawyer knows is
criminal or fraudulent, or assist the client in such conduct. However, the lawyer may
discuss the legal consequences of any proposed course of conduct. The lawyer
may also counsel or assist a client to make a good faith effort to determine the
validity, scope, meaning, or application of the law (e.g., violating a statute to test its
validity or scope in an enforcement proceeding). [ABA Model Rule 1.2(d)]

a. Telling the Client “No”

When a lawyer discovers that her client expects assistance that violates a
law or legal ethics rule, or if the lawyer intends to act contrary to the client’s
36. PROFESSIONAL RESPONSIBILITY

instructions, the lawyer must explain why she cannot do what the client expects.
[ABA Model Rule 1.2(d), comment 13]

b. Discussing Proposed Conduct

A lawyer may discuss a proposed course of conduct with a client, and explain
to the client that the conduct would be unlawful. If the client later uses the
lawyer’s advice to carry out a crime or fraud, that does not make the lawyer
a party to the illegal conduct. However, the lawyer must not recommend the
illegal conduct or instruct the client on how to break the law and get away
with it. [ABA Model Rule 1.2(d) and comment 9] If a client insists on illegal or
unethical assistance, the lawyer must withdraw from representation. [ABA
Model Rule 1.16(a)]

c. Discovering a Client’s Illegal Conduct

When a lawyer discovers that a client has begun an illegal course of action
and the action is continuing, the lawyer must not assist in the wrongdoing,
e.g., by drafting fraudulent documents or suggesting how the wrongdoing can
be concealed. [ABA Model Rule 1.2(d) and comment 10] In this situation, the
lawyer must withdraw because continued representation would violate the
rules of professional conduct. [ABA Model Rule 1.16(a)(1); and see G.3.b., infra]
Sometimes withdrawal alone is not enough—the lawyer may have to make a
“noisy withdrawal” in which she gives outsiders notice of her withdrawal and
disaffirms any of her prior opinions, documents, affirmations, or the like that the
client is using to carry out the wrongdoing. [ABA Model Rule 1.2, comment 10]
The lawyer’s noisy withdrawal may put the client’s victim on guard, but that is
permissible (and probably praiseworthy). [See also ABA Model Rule 4.1(b) and
comment 3—concerning disclosure of confidential information]

3. Decisions to Be Made by Client

When a client brings a legal problem to a lawyer, it is the client who must decide
what shall be the objectives of the lawyer’s work. Thus, it is the client who must
make the key decisions that affect the client’s substantial legal rights. A lawyer must
therefore abide by the client’s decision regarding the following matters:

a. Whether to accept a settlement offer;

b. What plea to enter in a criminal case;

c. Whether to waive a jury trial in a criminal case;

d. Whether the client will testify in a criminal case; and

e. Whether to appeal.

[ABA Model Rule 1.2(a); Restatement §22(1)]

 PROFESSIONAL RESPONSIBILITY 37.

EXAMPLES
1) Lawyer L agrees to represent C on a contingent fee basis in C’s suit against D for
slander. L’s fee agreement provides that the suit cannot be settled before trial with-
out L’s consent. L is subject to discipline. The decision to settle a suit is made by the
client, not the lawyer—even in a contingent fee case. [See ABA Model Rule 1.2(a)]
2) Attorney A is defending B in a burglary case. A has carefully advised B about
the legal and practical consequences of pleading not guilty, waiving a jury trial, and
testifying on his own behalf. Having done that, A must now allow B to make the final
decision on those three vital issues. [Id.]

a. Disagreements Between Lawyer and Client

Lawyers and clients sometimes disagree about the means to be used to
reach the client’s objectives. Clients normally defer to their lawyers about
issues of law, tactics, and strategy. Conversely, lawyers normally defer to their
clients about questions of expense and concern for third persons who might
be affected by a legal tactic. A lawyer and client should try to resolve their
disagreements, but if they cannot, the lawyer may withdraw or the client may
fire the lawyer. [See ABA Model Rule 1.16(a)(3), (b)(4)]

4. Lawyer’s Authority to Bind Client

A lawyer is the client’s agent. Under the law of agency, the lawyer’s actions on
behalf of a client will legally bind the client if the lawyer acted with actual or
apparent authority.

a. Actual Authority—Lawyer’s Belief

A lawyer has actual authority if she reasonably believes she is authorized to
act based on her dealings with the client. Actual authority can be express or
implied (i.e., what the client has expressly told the lawyer to do, along with
anything else impliedly authorized to carry out the representation). A lawyer also
has actual authority to take actions that she reasonably believes are required by
law or court order. [Restatement §26A]
b. Apparent Authority—Third Party’s Belief
When dealing with the court and third parties, a lawyer has apparent authority
when the court or third party reasonably assumes that the lawyer has
authority to act based on some manifestation from the client that the lawyer
had authority. Even if the lawyer acted without actual authority, the client is
still bound if the lawyer had apparent authority. However, the client can sue
the lawyer for damages (and of course, the lawyer is still subject to discipline).
[Restatement §27A and comment f]
1) How Client Creates Apparent Authority
Often, the client’s mere act of retaining the lawyer is enough to give the
lawyer apparent authority to act on the client’s behalf. However, when
38. PROFESSIONAL RESPONSIBILITY

it comes to settlement and other decisions that are ultimately left to the
client (see 3., above), merely retaining the lawyer is not enough to give the
lawyer apparent authority. [Restatement §27A, comment d] Thus, if a lawyer
settles a case for a client without actual authority, the client is not bound to
the agreement unless the client somehow indicated to the opposing party
that the lawyer was authorized to settle the case.

c. Ratification
Even if a lawyer acted without any authority, the client may subsequently ratify
the act (e.g., by cashing a settlement check). The effect of ratification is the
same as if the lawyer had originally acted with actual authority. [Restatement
§26A] Consequently, the client is bound and may not sue the lawyer for
damages. Note, however, that the lawyer would still be subject to discipline.

d. When Lawyer’s Authority Ends

A lawyer’s actual authority to represent a client ends when: (1) the matter is
complete or the lawyer is fired or withdraws; (2) the client dies (or dissolves,
if the client is an organization); or (3) the lawyer dies or is otherwise unable
to continue the representation (e.g., because of disbarment or disability). The
lawyer’s apparent authority ends when the third party knows or should know
that any of these events occurred, or whenever it can reasonably be inferred
that the lawyer lacks actual authority. [Restatement §31]

1) Must Notify Third Parties Relying on Authority

When a lawyer’s actual authority ends, the lawyer must no longer purport
to have authority and must notify third parties who are relying on the
continued existence of the authority. [Restatement §31, comment i]

5. Client with Diminished Capacity

a. Lawyer’s Duties
Normally, it is assumed that a client can make decisions about important
matters, but if the client is a minor or has diminished mental capacity, that may
not be true. Nevertheless, such a client may be able to make some kinds of
decisions that affect her own well-being. For example, even very young children
can have valuable opinions about who should have custody of them. Similarly,
even very old clients can handle routine financial matters, although they may
need legal protection concerning major transactions. The lawyer has a duty,
so far as reasonably possible, to maintain a normal lawyer-client relationship
with the client. [ABA Model Rule 1.14(a) and comment 1] The lawyer must treat
the client with attention and respect. Even if the client has a guardian or other
representative, the lawyer should, so far as possible, treat the client as a client,
particularly in communicating with the client about significant developments.
[ABA Model Rule 1.14, comment 2]
 PROFESSIONAL RESPONSIBILITY 39.

b. Protective Action and Appointment of Guardian

When the client has diminished capacity and faces a risk of substantial
physical, financial, or other harm, the lawyer may take reasonable actions to
protect the client. These actions include consulting with people or entities that
can protect the client, and, when appropriate, seeking the appointment of a
guardian or similar surrogate. [ABA Model Rule 1.14(b)] When taking protec-
tive action, the lawyer has implied authority to reveal the client’s confidential
information, but only to the extent necessary to protect the client. [ABA Model
Rule 1.14(c)]

EXAMPLE
For many years, lawyer L has represented widower W in personal and business
matters. Now W’s physical and mental condition make it unsafe for him to con-
tinue living alone in the old family home, and he has no close relatives or friends
to assist him. L may search out suitable living quarters for W, where eating facili-
ties and medical help are close at hand. To the extent possible, L should involve
W in making the decision to move. If L reasonably believes that W needs a con-
servator, she may seek to have one appointed; in the appointment process, she
may, if necessary, disclose confidential information about W’s condition. After a
conservator is appointed, L should still treat W as her client, consulting with him,
keeping him advised of developments, and allowing him to make all decisions
of which he is capable.

6. Emergency Legal Assistance to Nonclient with Seriously Diminished Capacity

When a person with seriously diminished capacity faces imminent and irreparable
harm to her health, safety, or financial interest, a lawyer may take legal action on
her behalf, despite her inability to establish a lawyer-client relationship or to make
or express considered judgments about the matter. However, the lawyer cannot act
until the person (or someone acting on her behalf) has consulted the lawyer, and
the lawyer should not act unless he reasonably believes the person has no other
representative available. Any action undertaken should be limited to that which is
reasonably necessary to maintain the status quo or otherwise avoid imminent and
irreparable harm. [ABA Model Rule 1.14, comment 9]

a. Lawyer’s Duties
A lawyer who represents a person in such emergency circumstances has the
same duties as he would with respect to a client. [Id.] In an emergency situa-
tion, confidences may be disclosed only to the extent necessary to accomplish
the intended protective action. The lawyer should disclose the nature of his
relationship with the person to any tribunal or counsel involved in the matter.
Furthermore, steps should be taken to regularize the relationship as soon as
possible. [ABA Model Rule 1.14, comment 10]
40. PROFESSIONAL RESPONSIBILITY

b. No Compensation for Lawyer

Normally, a lawyer would not seek compensation for emergency actions taken
on behalf of a nonclient. [Id.]

E. COMMUNICATING WITH THE CLIENT

1. Matters that Require Informed Consent
The lawyer must promptly inform the client of any decision or circumstance that
requires the client’s informed consent. [ABA Model Rule 1.4(a)] “Informed consent”
means that the client agrees to a proposed course of conduct after the lawyer has
sufficiently explained the material risks and reasonable alternatives. [ABA Model
Rule 1.0(e)]

EXAMPLES
1) ABA Model Rule 1.7(b) permits a lawyer, in defined circumstances, to represent
two clients who have a concurrent conflict of interests. One prerequisite is that both
clients give informed consent in writing. The lawyer must sufficiently explain the ma-
terial risks and reasonably available alternatives to both clients before they can give
valid consent.
2) If an adversary offers to settle a civil case, or offers a plea bargain in a criminal
case, the lawyer must promptly convey the offer to her client unless the client has
previously instructed the lawyer that an offer on those terms is acceptable or unac-
ceptable or has authorized the lawyer to accept or reject such an offer. [ABA Model
Rule 1.4, comment 2]

2. Information About Status of the Matter and Means to Be Used

The lawyer must keep the client reasonably informed about the status of the matter
and about the means by which the lawyer plans to accomplish the client’s objec-
tives. [ABA Model Rule 1.4(a)(2), (3)] If the lawyer must make an immediate decision
(such as whether to object to a line of questioning during a trial), the lawyer need not
consult with the client before acting. [ABA Model Rule 1.4, comment 3] However, in
less urgent situations, the lawyer should consult with the client before acting.

EXAMPLE
Client C hired lawyer L to negotiate on C’s behalf in a real estate dispute. C told L: “You
have complete authority—just get the best deal you can.” Despite the grant of broad
authority, L should keep C advised of the progress of the negotiations. When there is
time to do so, L should review the material issues with C before taking final action.

a. Admitting Mistakes
To comply with the duty of communication, a lawyer must inform a current client
if the lawyer believes he has “materially erred” in any representation of the
client. An error is considered material if a disinterested lawyer would conclude
 PROFESSIONAL RESPONSIBILITY 41.

that: (1) it is reasonably likely to harm or prejudice the client; or (2) even in the
absence of harm or prejudice, it is of such a nature that it would reasonably
cause the client to consider discharging the lawyer. However, once an attorney-
client relationship has ended, the lawyer has no obligation to inform the former
client of material errors discovered after the fact. [ABA Formal Op. 481 (2018)]

3. Request for Information

If the lawyer keeps the client properly informed of developments in the matter, the
client will not often need to ask the lawyer for information. When a client does make
a reasonable request for information, the lawyer must respond promptly. If that is
impossible, then the lawyer or a member of her staff should acknowledge the client’s
request and tell the client when the information will be available. [ABA Model Rule
1.4(a)(4) and comment 4]

4. Consultation About Illegal or Unethical Conduct

If the client expects the lawyer to do something that is either illegal or unethical, the
lawyer must consult with the client and explain why he cannot do what the client
wants. [ABA Model Rule 1.4(a)(5)]

EXAMPLE
Attorney A is representing defendant D at a criminal trial. They expected to use an
alibi defense based on the testimony of witness W, but the prosecution’s case-in-
chief proves beyond doubt that W’s proposed testimony would be perjurious. In a
recess before the defense’s case-in-chief, D tells A to call W according to plan. A
must explain to D why he cannot use W’s testimony and must consult with D about
an alternative defense strategy.

5. Special Circumstances
The amount and kind of information and explanations the lawyer should give to
the client depend on the client’s situation. If the client is young or has diminished
capacity, the lawyer may have to do more explaining and assisting than if the client
is an ordinary adult. If the client is an organization or group, the lawyer should
ordinarily communicate with the appropriate officer. If the client and the lawyer have
a regular, established relationship concerning many routine matters, the two of them
may agree on a convenient arrangement for only limited or occasional reporting.
[ABA Model Rule 1.4, comment 6]

EXAMPLE
For many years, attorney A has done the routine collection work for a major bank.
In a normal week, the bank sends A 20 to 30 new collection cases. Over the years,
A and the bank have settled on a standard procedure for handling these cases. It
would be proper for A and the bank to agree that A must report only major or un-
usual occurrences.
42. PROFESSIONAL RESPONSIBILITY

6. Withholding Information from Client

A lawyer may delay the transmission of information to a client if the client would be
likely to react imprudently to an immediate communication. The lawyer must not,
however, withhold information to serve the lawyer’s or a third person’s interest or
convenience. [ABA Model Rule 1.4, comment 7]

EXAMPLE
Defendants D and E were charged with the felony murder of X, and they were grant-
ed separate trials. In the depths of despondency, D vowed to take his own life if E
was convicted. That same day, E was convicted. D’s lawyer may withhold that infor-
mation from D until D is able to react to it more rationally.

a. Court Rule or Order

A court rule or order may forbid a lawyer from sharing certain information with
a client, and the lawyer must comply with such a rule or order. [ABA Model Rule
3.4(c); ABA Model Rule 1.4, comment 7]

EXAMPLE
In a patent infringement case, the patentee’s lawyer demanded production of all
of the defendant’s laboratory operating manuals. The defendant complied with
the demand and gave the patentee’s lawyer the manuals. Subsequently, how-
ever, the defendant convinced the judge that the manuals contained valuable
trade secrets, and the judge therefore issued a protective order forbidding the
patentee’s lawyer from sharing the information in the manuals with her client.
Patentee’s lawyer must either obey the order or use appropriate legal means to
challenge its validity.

F. CONTRACTS CONCERNING CLIENT-LAWYER RELATIONSHIP

Contracts that concern the relationship between a lawyer and client usually involve fees,
but may involve other issues such as the extent of the lawyer’s services, the identity of
the lawyers who will work on the matter, etc. Such a contract is generally enforceable by
either party if it is otherwise lawful (e.g., contains all the required disclosures and does
not provide for an unreasonable fee). However, the client may avoid the contract in the
following circumstances. [Restatement §14]

1. Contract Not Made at Outset

A contract between a lawyer and client, including a modification to an existing
contract, is subject to scrutiny if made beyond a reasonable time after the represen-
tation begins (e.g., mid-way through the client’s case). The rationale is that the client
may feel pressured to accept the contract or modification because it is burdensome
to change lawyers during a representation. Thus, in this situation, the client may
avoid the contract unless the lawyer shows that the contract and the circumstances
of its formation were fair and reasonable to the client.
 PROFESSIONAL RESPONSIBILITY 43.

2. Contract Made After Work Completed

If the contract or modification was made after the lawyer had finished providing
services, the client may avoid it if the client was not informed of facts needed
to evaluate the appropriateness of the lawyer’s compensation or other benefits
conferred on the lawyer by the contract.

G. TERMINATING THE LAWYER-CLIENT RELATIONSHIP

Once established, the lawyer-client relationship ordinarily continues until the comple-
tion of the work for which the lawyer was hired. However, the relationship can end
prematurely in any of three ways: (1) the client can fire the lawyer; (2) in some situations,
the lawyer must withdraw; and (3) in some situations, the lawyer may withdraw. [See
Restatement §32]

1. Client Fires Attorney

The client’s complete trust is an essential part of any attorney-client relationship. The
law thus allows the client to fire the attorney at any time, with or without just cause.
Even if the client fires the attorney for no good reason, the client will not be held
liable for breach of contract; for policy reasons, courts construe all attorney employ-
ment contracts as being terminable at will by the client. [See, e.g., Fracasse v. Brent,
6 Cal. 3d 784 (1972)]

a. Client’s Liability for Fees

When the client fires the attorney, the client is liable to the attorney in quantum
meruit (an equitable action to avoid unjust enrichment) for the reasonable value
of the work the attorney did before being fired. If the contract between the
attorney and client provides for a flat fee or a maximum fee, that constitutes a
ceiling on the quantum meruit recovery. [See Rosenberg v. Levin, 409 So. 2d
1016 (Fla. 1982)] That is, the attorney cannot recover more than was provided for
by express contract.

b. Contingent Fee Cases

When a client hires a lawyer on a contingent fee basis, and then fires the lawyer
before the case is over, the lawyer is still entitled to quantum meruit recovery for
the reasonable value of the work done before the firing. However, the lawyer’s
claim does not arise until the contingency comes to pass. [Id.]

EXAMPLE
Lawyer L agreed to represent plaintiff P in a personal injury case. L agreed to
do the work for 40% of P’s recovery, but not more than $10,000. After L spent
hundreds of hours preparing the case for trial, P fired L for no apparent reason.
Then P settled the case for $40,000. Before the settlement, L had no claim
against P because the contingency had not come to pass. After the settlement,
L is entitled to the reasonable value of his services, but not more than $10,000
(the maximum set in the contract).
44. PROFESSIONAL RESPONSIBILITY

2. Court Permission to Substitute Attorneys

After a lawsuit has been filed, the rules of most courts require the court’s permission
for a substitution of attorneys. When a party wants to fire her attorney, courts almost
always grant the necessary permission, but permission may be denied if a substitu-
tion of attorneys would cause undue delay or disruption. [See, e.g., Ruskin v. Rodgers,
399 N.E.2d 623 (Ill. 1979)—permission denied when client tried to fire attorney without
cause two days before date set for trial] On the other hand, when an attorney seeks to
withdraw from a case, the court may deny the necessary permission; in that event, the
attorney must continue the representation, even if there is good cause for withdrawal.
[ABA Model Rule 1.16(c)]

3. Mandatory Withdrawal

a. Disability
An attorney must withdraw if the attorney’s mental or physical condition materi-
ally impairs the attorney’s ability to continue representing the client. [ABA Model
Rule 1.16(a)(2)]

b. Illegality or Ethical Violation

If to continue with the representation will require the attorney to violate a law or
a disciplinary rule, the attorney must withdraw. [ABA Model Rule 1.16(a)(1)]

EXAMPLE
Attorney A agreed to represent client C in a slander suit against D. At the out-
set, A believed in good faith that C had a sound claim against D. Discovery later
showed not a shred of evidence to support C’s contentions. C finally confessed
to A that she was maintaining the suit simply to harass and injure D. A must
withdraw because to continue would require him to violate the disciplinary rule
against frivolous litigation. [ABA Model Rule 3.1]

4. Permissive Withdrawal
An attorney may withdraw from representing a client for any reason if it can be done
without material adverse effect on the client’s interests or if the client consents. [ABA
Model Rule 1.16(b)(1)] In addition, the attorney may withdraw despite an adverse impact
on the client’s interests in the situations listed below, provided the circumstances are
severe enough to justify harming the client’s interests. [See Restatement §32]

a. Client Persists in Criminal or Fraudulent Conduct

A lawyer may withdraw from representing a client if the client persists in a
course of action that involves the lawyer’s services and that the lawyer reason-
ably believes is criminal or fraudulent. [ABA Model Rule 1.16(b)(2)] Note that
if the client’s criminal or fraudulent conduct involves some assistance by the
lawyer, then the lawyer must withdraw. [ABA Model Rules 1.16(a)(1), 1.2(d)]
 PROFESSIONAL RESPONSIBILITY 45.

b. Client Has Used Attorney’s Services to Commit Past Crime or Fraud

An attorney may withdraw from representing a client if the client has used the
attorney’s services to commit a past crime or fraud. [ABA Model Rule 1.16(b)(3)]

c. Client’s Objective Is Repugnant or Against Lawyer’s Beliefs

An attorney may withdraw from representing a client if the client insists on
taking action that the attorney considers to be repugnant or with which the
lawyer has a fundamental disagreement. [ABA Model Rule 1.16(b)(4)]

d. Client Breaks Promise to Attorney

An attorney may withdraw from representing a client if the client substantially
fails to fulfill an obligation to the attorney and has been warned that the attorney
will withdraw unless it is fulfilled (for instance, client refuses to pay attorney’s
fee, or refuses to appear for scheduled hearings despite promises to attorney).
[ABA Model Rule 1.16(b)(5)]

e. Financial Hardship for Attorney

An attorney may withdraw from representing a client if to continue the repre-
sentation will impose an unreasonable financial burden on the attorney. [ABA
Model Rule 1.16(b)(6)]

f. Client Will Not Cooperate

An attorney may withdraw from representing a client if the client has made
the attorney’s work unreasonably difficult (e.g., where the client refuses to
cooperate with the attorney in discovery proceedings). [Id.]

g. Other Good Cause

An attorney may withdraw if there is other good cause for withdrawal. [ABA
Model Rule 1.16(b)(7)]

5. Attorney’s Duties Upon Termination of Representation

An attorney who withdraws from a matter must comply with local laws that require
notice to or permission of the tribunal before withdrawal. [ABA Model Rule 1.16(c)]
Moreover, upon termination of the representation, the attorney must take reasonable
steps to protect the client’s interests, including:

a. Providing the client with reasonable notice of the withdrawal;

b. Providing the client with time to obtain another attorney;

c. Refunding attorneys’ fees paid in advance and not yet earned and expense
advances not yet spent; and

d. Returning all papers and property to which the client is entitled.

[ABA Model Rule 1.16(d)]

46. PROFESSIONAL RESPONSIBILITY

EXAMPLES
1) Lawyer L decided to withdraw from representing client C in a workers’ compen-
sation case because C repeatedly failed to comply with the adversary’s legitimate
discovery requests, repeatedly failed to show up to have his deposition taken, and
deliberately refused to make the monthly fee payments that he had promised to L.
C asked L to turn the case files over to C’s new lawyer, but L refused to do so un-
til his past due fees had been paid. The law of L’s state (following the better view)
does not allow a lawyer to hold case files hostage to compel payment of legal fees.
[See Academy of California Optometrists, Inc. v. Superior Court, 51 Cal. App. 3d 999
(1975)] L is subject to discipline.
2) Attorney A was retained to represent client C in a divorce case. With C’s consent,
C’s parents paid A $1,000 as an advance on attorneys’ fees not yet earned. The par-
ents understood that they could not attempt to influence A’s judgment about how to
handle C’s case. (See IV.C.8., infra.) C then departed for parts unknown, making it im-
possible for A to pursue the divorce case. The parents would now like to have their
$1,000 back, and A would like to withdraw from the matter. In these circumstances, it
is proper for A to withdraw and to refund the fee advance to C’s parents. [New York
City Bar Op. 83-62 (1983)]

III. CLIENT CONFIDENTIALITY

A. GENERAL RULE
As a general rule, a lawyer must not reveal any information relating to the representation
of the client. A lawyer may, however, reveal such information if the client gives informed
consent, or if the disclosure is impliedly authorized to carry out the representation. [ABA
Model Rule 1.6] The ethical duty is subject to some additional exceptions, discussed in D.,
infra. The rationale of the ethical duty is that it encourages candor between the lawyer
and the client, encourages the client to seek early legal advice, and helps the lawyer
discover all of the information relevant to the client’s legal problem. [See ABA Model
Rule 1.6, comment 2; with respect to the ethical duty of confidentiality, see generally
Restatement §§59 - 67]

B. RELATIONSHIP BETWEEN ETHICAL DUTY OF CONFIDENTIALITY AND

ATTORNEY-CLIENT PRIVILEGE
The ethical duty of confidentiality is closely related to the attorney-client privilege, but the
two doctrines differ in three important ways.
1. Compulsion vs. Gossip
The attorney-client privilege is an exclusionary rule of evidence law. It prevents
a court, or other governmental tribunal, from using the twin powers of subpoena
and contempt to compel the revelation of confidential communications between an
attorney and a client. In contrast, the ethical duty of confidentiality prohibits an
attorney from voluntarily revealing information relating to the representation of a
 PROFESSIONAL RESPONSIBILITY 47.

client—it applies in every context where the attorney-client privilege does not apply.
[See ABA Model Rule 1.6, comment 3]

EXAMPLES
1) During the course of a civil trial, lawyer L’s adversary called her to the witness
stand and posed questions about her confidential communications with her client. In
this context, the rights and duties of L and her client are governed by the attorney-
client privilege, not by the ethical duty of confidentiality.
2) When lawyer L was chatting with a friend at a cocktail party, the friend asked L for
some information that L had gained in the course of representing one of her clients.
In this context, the attorney-client privilege is irrelevant—the privilege does not apply
at cocktail parties. Here, L is governed by the ethical duty of confidentiality.

2. Kinds of Information Covered

The ethical duty of confidentiality covers more kinds of information than the
attorney-client privilege. The attorney-client privilege protects only confidential
communications between the attorney and client (or the agents of either of them).
The ethical duty, in contrast, covers not only confidential communications, but also
any other information that the attorney obtains relating to the representation of the
client, no matter what the source of that information. The ethical duty thus applies to
all information that relates to the representation of the client, regardless of whether
it is privileged, whether the client asked for it to be kept in confidence, and whether
revealing it might harm or embarrass the client. For purposes of this outline, the term
“confidential information” means all information protected by the duty of confidenti-
ality expressed in ABA Model Rule 1.6.

EXAMPLE
Attorney A is representing client C in proceedings to challenge the will left by C’s
mother. While conducting her own investigation of the facts of the case, A learns
from a third party that C is the illegitimate son of an itinerant book salesman. This
information is not protected by the attorney-client privilege because A did not gain it
through a confidential communication with C. Nevertheless, under ABA Model Rule
1.6, the information is covered by the ethical duty of confidentiality.

3. Disclosure vs. Use

The attorney-client privilege concerns only the disclosure of information. In contrast,
the ethical duty of confidentiality concerns both the disclosure and use of informa-
tion. An attorney can be disciplined for disclosing a client’s confidential information
without the client’s informed consent (unless one of the exceptions to the ethical
duty is applicable) [ABA Model Rule 1.6(a)], or for using confidential information to
the disadvantage of a client, former client, or prospective client, without the affected
client’s informed consent. [ABA Model Rules 1.8(b), 1.9(c), 1.18(b)]
48. PROFESSIONAL RESPONSIBILITY

C. SUMMARY OF ATTORNEY-CLIENT PRIVILEGE

Because the ethical duty of confidentiality is so closely related to the attorney-client
privilege, the following is a brief summary of the main features of the privilege. [See
Restatement §§68 - 86—restates the law of attorney-client privilege]

1. Basic Rule
The attorney-client privilege prohibits a court or other governmental tribunal from
compelling the revelation of confidential communications between an attorney (or an
attorney’s agent) and a client (or a client’s agent) if the subject of the communication
concerns the professional relationship between the attorney and the client.

2. Client
A “client” means a person or entity that seeks legal services from an attorney.
The privilege covers preliminary communications leading up to an attorney-client
relationship, even if no such relationship develops. [See also ABA Model Rule 1.18—
duty of confidentiality to a prospective client]

EXAMPLE
H wants to hire a lawyer to obtain a dissolution of his marriage. After speaking in
confidence with lawyer L about his marital problems, H decides not to hire L as his
lawyer. Even though no attorney-client relationship ultimately develops between H
and L, the attorney-client privilege protects what H told L in confidence.

a. Corporate Clients
When the client is a corporation, the privilege covers communications between
the lawyer and a high-ranking corporate official. It also covers communications
between the lawyer and another corporate employee if the following conditions
are met:

1) The employee communicates with the lawyer at the direction of the

employee’s superior;

2) The employee knows that the purpose of the communication is to obtain

legal advice for the corporation; and

3) The communication concerns a subject within the scope of the employ-

ee’s duties to act for the corporation.

[See Upjohn Co. v. United States, 449 U.S. 383 (1981)]

3. Attorney
An “attorney” means a person who is authorized (or whom the client reasonably
believes to be authorized) to practice law in any state or nation. However, for the
privilege to apply, the attorney must be acting as an attorney—not in some other
capacity, such as a friend, business advisor, or member of the family.
 PROFESSIONAL RESPONSIBILITY 49.

4. Communication
The term “communication” covers information passed from the client to the attorney
and from the attorney to the client. It also covers information passed to or from the
agents of either the attorney or the client.

EXAMPLE
Whitney Corp. hires attorney A to represent it in a dispute over the construction of
a nuclear power plant. A hires structural engineer E to assist her on the technical
aspects of the case. At A’s direction, E talks with F, the chief engineer of Whitney
Corp., to find out certain facts about the case. E’s discussion with F is covered by the
attorney-client privilege.

a. Mechanical Details of Relationship

Usually the attorney-client privilege does not cover the mechanical details of the
attorney-client relationship, such as the identity of the client, the fee arrange-
ment between the attorney and client, and the bare fact that the attorney is
acting for the client. But these mechanical details can be protected by the privi-
lege if revealing them is tantamount to revealing a privileged communication.
[See Christopher Mueller & Laird Kirkpatrick, Evidence §5.19 (6d ed. 2018)]

EXAMPLE
X came to lawyer L’s office and asked to employ L in a confidential matter. X
then said that he was the hit and run driver in the car wreck reported on the
front page of today’s newspaper. X asked L to negotiate with the authorities for
him, but not to reveal his identity without first getting X’s specific permission.
Later, the parents of the victim in the hit and run brought a wrongful death ac-
tion against a John Doe defendant. They subpoenaed L and asked her to reveal
the identity of the person who had consulted her about the hit and run. A court
cannot compel L to disclose X’s identity; the attorney-client privilege protects
it because to reveal it would be tantamount to revealing X’s statement that he
was the hit and run driver. [See Baltes v. Doe I, 4 ABA/BNA Lawyer’s Manual on
Professional Conduct 356]

b. Preexisting Documents and Things

The attorney-client privilege covers both oral and written communications.
However, the client cannot protect a preexisting document or thing from discovery
simply by turning it over to the attorney. If the document or thing would be discov-
erable in the client’s hands, it is equally discoverable in the attorney’s hands.

EXAMPLES
1) Client C hires attorney A to defend her in a breach of contract case. C turns
over to A her entire file of records relating to the contract. If the records would
50. PROFESSIONAL RESPONSIBILITY

be discoverable when in the possession of C, they are equally discoverable

when in the possession of A.
2) D tells his lawyer, L: “I just shot X, and I threw the revolver in the trashcan
behind my apartment.” The revolver itself is not privileged, but D’s communica-
tion with L about the revolver is privileged. [California v. Meredith, 29 Cal. 3d 682
(1981)] L’s knowledge of the whereabouts of the revolver is privileged. If L simply
looks in the trashcan to confirm D’s story, D can invoke the privilege and prevent
L from testifying about what he saw. [Id.] L has no legal or ethical duty to retrieve
the revolver from the trashcan. Furthermore, absent D’s informed consent, L must
not tell anyone where the revolver is. [ABA Model Rule 1.6] If L retrieves the re-
volver from the trashcan, he may keep it long enough to obtain from it any infor-
mation that may be useful in D’s defense. Then L must turn it over to the proper
authorities. [California v. Meredith, supra; State v. Olwell, 394 P.2d 681 (Wash.
1964)] By removing the revolver from the trashcan, L has destroyed a valuable
piece of evidence—the incriminating location of the revolver. L’s action requires
a compromise between the need to protect privileged communications and the
need for relevant evidence. The compromise reached in Meredith and Olwell is
as follows: The trier of fact will be told where the revolver was found, but the trier
of fact will not be told that L was the source of that information. For example, L
and the prosecutor can simply stipulate that the jury at D’s trial will be informed
of the location of the revolver, without telling them the source of that information.
However, if L retrieves the revolver from the trashcan and hides or destroys it,
L may face criminal liability for tampering with evidence, and L is also subject to
professional discipline. [In re Ryder, 263 F. Supp. 360 (E.D. Va. 1967)]

5. “Confidential” Defined
To be covered by the attorney-client privilege, a communication must be “confiden-
tial”; it must have been made by a means not intended to disclose the communicated
information to outsiders, and the communicating person must reasonably believe
that no outsider will hear the contents of the statement.

a. Presence of Third Party

The presence of a third party will not destroy the confidentiality if the third party
was present to help further the attorney-client relationship. However, the third
party need not play a direct role in the communication and may be present
because of the client’s psychological needs (e.g., a family member accompa-
nying the client). [Restatement §70, comment f]

EXAMPLE
Five persons were present during an office conference between Client and
Attorney. In addition to Client and Attorney, the persons present were Client’s
accountant (who was there to help explain Client’s books of account), Attor-
ney’s law clerk (who was there to assist Attorney in drafting some interrogatory
 PROFESSIONAL RESPONSIBILITY 51.

answers), and Attorney’s legal secretary (who was there to take dictation). The
presence of the accountant, the law clerk, and the secretary does not destroy
the confidentiality.
COMPARE
During a recess in trial, Attorney and Client discussed Client’s intended testimo-
ny in a crowded courthouse corridor where bystanders could obviously over-
hear. This conversation is not confidential for purposes of the attorney-client
privilege. Thus, the privilege does not bar examination of either Client or Attor-
ney regarding the conversation.

b. Eavesdroppers
In days gone by, the presence of an unsuspected eavesdropper was sometimes
held to destroy the confidentiality of a communication. Under modern evidence
law, that is no longer true; an eavesdropper can be prohibited from testifying
about a confidential communication.

6. Client Is Holder of Privilege

The attorney-client privilege exists for the benefit of the client, not for the benefit of
the attorney. Therefore, the client is the “holder” of the privilege—i.e., the client is
the one who can claim or waive the privilege.

a. Waiver of Privilege
A waiver consists of a failure to claim the privilege when there is an opportunity
to do so, or the intentional revelation of a significant portion of the privileged
communication.

EXAMPLE
Client C shows his next-door neighbor the first two pages of a three-page
privileged letter. In a later civil case, C’s adversary can compel production of the
entire letter. C has waived the privilege.

1) Client Puts Legal Services at Issue

The client may also waive the privilege by asserting a claim or defense that
puts the legal services at issue in the case. For example, where a defen-
dant appeals a criminal conviction on the basis of ineffective assistance of
counsel at trial, the communications between the defendant and the trial
attorney are not privileged. [Restatement §80]

b. Lawyer’s Duty to Invoke Privilege

If the client has not waived the privilege, and if someone tries to obtain privi-
leged information when the client is not present, the lawyer must claim the
privilege on the client’s behalf.
52. PROFESSIONAL RESPONSIBILITY

EXAMPLE
Lawyer L represents client C in a civil case. On a day when C is not present in
court, C’s adversary calls L to the witness stand and poses questions about confi-
dential communications between C and L. L must claim the privilege on C’s behalf.

7. Duration of Privilege
The attorney-client privilege continues indefinitely. Termination of the relationship,
even for cause, does not terminate the privilege. The privilege even survives the
death of the client. [Swidler & Berlin v. United States, 524 U.S. 399 (1998)] Thus, a
lawyer has a continuing obligation to assert the privilege on behalf of a client who
has died, subject to exceptions relating to the deceased’s disposition of property.
[Restatement §77, comment c]

8. Exceptions to Privilege
Modern evidence law provides several exceptions to the attorney-client privilege.

a. The privilege does not apply if the client seeks the attorney’s services to
engage in or assist a future crime or fraud. [See Restatement §82]

b. The privilege does not apply to a communication that is relevant to an issue

of breach (by either the attorney or the client) of the duties arising out of the
attorney-client relationship. [Id. §83]

c. The privilege does not apply in civil litigation between two persons who were
formerly the joint clients of the attorney. [Id. §75(2)]

d. The privilege does not apply in a variety of situations in which the attorney
can furnish evidence about the competency or intention of a client who has
attempted to dispose of property by will or inter vivos transfer.

9. Related Doctrine of Work Product Immunity

Generally, material prepared by a lawyer for litigation or in anticipation of litiga-
tion is immune from discovery or other compelled disclosure unless the opposition
shows a substantial need for the material and an inability to gather the material
without undue hardship. A lawyer’s mental impressions or opinions are immune from
discovery or compelled disclosure regardless of the opposition’s need unless the
immunity has been waived. [See Restatement §§87 - 93]

D. ETHICAL DUTY OF CONFIDENTIALITY AND ITS EXCEPTIONS

As explained previously (see B.1., supra), the ethical duty of confidentiality applies in
every context in which the attorney-client privilege does not apply. The ethical duty
also covers a broader range of information than the privilege. Finally, the ethical duty
concerns not only the disclosure of information, but also the use of information to the
disadvantage of a client, a prospective client, or a former client.
 PROFESSIONAL RESPONSIBILITY 53.

1. Duty Not Destroyed by Presence of Third Party

Unlike the attorney-client privilege, the presence of a nonprivileged third person does
not necessarily destroy an attorney’s duty of confidentiality. Confidential information
remains confidential even if it is known to others, unless the information becomes
generally known. Whether information is generally known depends on all the
surrounding circumstances, but information is not generally known when it can be
obtained only by means of special knowledge or substantial difficulty or expense.

2. Exceptions to the Duty of Confidentiality

The exceptions to the ethical duty are discussed separately in the following
paragraphs.

a. Client’s Informed Consent

An attorney may reveal or use confidential information if the client gives informed
consent. [ABA Model Rule 1.6(a)] Remember that “informed consent” means that
the client agrees to a proposed course of action after the lawyer has adequately
explained the risks and reasonable alternatives. [ABA Model Rule 1.0(e)]

EXAMPLE
Attorney A is representing defendant D in an armed robbery case. D reluctantly
tells A that at the time of the alleged robbery, D was 10 miles away visiting a
house of prostitution, and that at least five witnesses can vouch for his presence
there. A may disclose and use this embarrassing information in the defense of
the armed robbery case if D gives informed consent.

b. Implied Authority
An attorney has implied authority from the client to use or disclose confidential
information when appropriate to carry out the representation—unless, of course,
the client gives specific instructions to the contrary. [ABA Model Rule 1.6(a)]

EXAMPLES
1) Lawyer L represents client A in negotiating a construction contract. Unless A
instructs L to the contrary, L has implied authority to disclose confidential infor-
mation about A’s business if that will serve A’s interests in the negotiation. [ABA
Model Rule 1.6, comment 5]
2) Lawyer M represents client B in litigation. Unless B instructs M to the contrary,
M has implied authority to disclose confidential information in a fact stipulation if
that will serve B’s interests in the litigation. [Id.]
3) Lawyer N is drawing up a will and a trust agreement for client C. Unless C
instructs N to the contrary, N has implied authority to discuss C’s confidential
information with other lawyers in N’s firm if that will serve C’s interests. [Id.]
54. PROFESSIONAL RESPONSIBILITY

4) Lawyer O is representing client D in a bankruptcy case. Unless D instructs O

to the contrary, O has implied authority to allow her paralegal, her law clerk, her
legal secretary, and the law firm’s copy-machine operator to have access to D’s
confidential business papers. However, O must take reasonable steps to as-
sure that those employees preserve the confidentiality of the information. [ABA
Model Rule 5.3; ABA Formal Op. 95-398 (1995)]
5) Lawyer Q is representing X Corp. in secret merger negotiations with Y Corp.
Secrecy is vital because if word leaks out, the stock prices of the two compa-
nies will move apart, making the merger impossible. On one knotty issue, Q
seeks the informal, uncompensated advice of his friend, lawyer R, a merger
expert in a different law firm. Q poses the issue to R in the form of a hypotheti-
cal that does not identify either X Corp. or Y Corp. by name. Unfortunately, Q is
careless in posing the hypothetical, which allows R to deduce the identities of X
Corp. and Y Corp. Q is subject to discipline for breaching the duty of confiden-
tiality. A lawyer may use a hypothetical to obtain advice from a fellow lawyer for
the benefit of the client, but the hypothetical must be discreet enough to pre-
clude any reasonable chance that the fellow lawyer will be able to deduce the
identity of the client or the situation at hand. [ABA Model Rule 1.6, comment 4;
ABA Formal Op. 98-411]

c. Disclosure to Prevent Death or Substantial Bodily Harm

ABA Model Rule 1.6(b)(1) permits a lawyer to reveal the client’s confidential infor-
mation to the extent that the lawyer reasonably believes necessary to prevent
reasonably certain death or substantial bodily harm. Note that the exception
applies to death or bodily harm whatever the cause; it need not be caused by
the client, and the cause need not be a criminal act. Notice also that the death
or bodily harm need not be imminent—it need only be reasonably certain.
Finally, notice that the exception gives the lawyer discretion to disclose the
confidential information; it does not require disclosure. Some states, however,
do require disclosure.

EXAMPLES
1) Kidnapper K is in custody pending trial, and he hires attorney A to defend him
against a charge that he kidnapped and murdered victim V. K tells A in confi-
dence where he buried V’s body. This is a completed crime—disclosure of K’s
secret could not prevent death or substantial bodily harm to anyone. If A reveals
K’s secret, A will be subject to discipline.
2) Kidnapper J telephones attorney B and asks for B’s legal advice. J tells B in
confidence that he has kidnapped victim U, that he has her bound and gagged
in the back of his van, and that he is on the road to Lonesome Pine, where he
plans to hold U for ransom. The legal advice J seeks from B is whether the
penalty for murder is more serious than the penalty for kidnapping for ransom.
 PROFESSIONAL RESPONSIBILITY 55.

B promises to call J back in a few minutes. B then telephones the police, tells
them the situation, and tells them that J is on the road to Lonesome Pine. B’s
conduct is proper in light of the reasonably certain risk of death or substantial
bodily injury to U.

d. Disclosure to Prevent or Mitigate Substantial Financial Harm

A lawyer may reveal the client’s confidential information to the extent neces-
sary to prevent the client from committing a crime or fraud that is reasonably
certain to result in substantial financial harm to someone, if the client is using
or has used the lawyer’s services in the matter. The same is true if the client has
already acted, and the lawyer’s disclosure can prevent or mitigate the conse-
quent financial harm. [See Restatement §67; ABA Model Rule 1.6(b)(2), (3)]

e. Dispute Concerning Attorney’s Conduct

An attorney may reveal a client’s confidential information to the extent neces-
sary to protect the attorney’s interests in a dispute that involves the conduct
of the attorney. [ABA Model Rule 1.6(b)(5)] In using this exception, the attorney
should: (1) reveal only what is necessary, (2) attempt to limit the disclosure to
those who need to know it, and (3) obtain protective orders or take other steps
to minimize the risk of unnecessary harm to the client. [ABA Model Rule 1.6,
comment 14]

EXAMPLES
1) Attorney A represented client C in a child custody case. C told A in confidence
about C’s emotional difficulties, alcoholism, and inability to hold steady employ-
ment. These confidential disclosures made the task of representing C vastly
more difficult and time-consuming than A had originally anticipated. C ultimately
lost the child custody case. C then refused to pay A’s legal fee, claiming that
it was unreasonably high. If A is unable to settle the fee dispute amicably and
has to sue C to collect the fee, A may reveal C’s confidential disclosures to the
extent necessary to prove why A’s fee is reasonable under the circumstances.
[ABA Model Rule 1.6(b)(5)]
2) Lawyer L defended client D in an arson case. D told L in confidence that he
did burn the building, hoping to collect the fire insurance. After careful consider-
ation, D followed L’s advice and did not testify on his own behalf at the trial. Fur-
thermore, L refused to call two alibi witnesses whose testimony L knew would
be false. D was convicted. D then sued L for legal malpractice. In defending
against D’s malpractice claim, L may reveal as much of D’s confidential disclo-
sures as is necessary to prove why L did not present the testimony of D and the
two alibi witnesses. [Id.]
3) In the arson example described above, instead of suing L for malpractice, D
filed a complaint with the state bar, accusing L of incompetence in the conduct
56. PROFESSIONAL RESPONSIBILITY

of the trial. At the disciplinary hearing, L may reveal as much of D’s confidential
disclosures as is necessary to prove why L did not present the testimony of D
and the two alibi witnesses. [Id.]
4) Client T hired attorney Y to help him form a limited partnership venture for
real estate investments. T furnished Y with confidential data for Y to use in pre-
paring financial statements and other documents needed in connection with the
sale of the partnership shares. Unbeknownst to Y, some of the confidential data
was fraudulent, and T’s partners lost their investments as a consequence. Two
of the partners confronted Y and accused him of being knowingly involved in
the fraud. Y may reveal enough of T’s confidential information to convince the
partners that Y did not know that the data was fraudulent, even though Y has
not yet been formally charged with a criminal or civil wrong or a disciplinary vio-
lation. [See ABA Model Rule 1.6, comment 10] This illustrates the doctrine called
“preemptive self-defense.” [See Hazard & Hodes, §10.37]

f. Disclosure to Obtain Legal Ethics Advice

A lawyer may disclose enough of the client’s confidential information as is
necessary to obtain legal ethics advice for the lawyer. [ABA Model Rule 1.6(b)(4)]

EXAMPLE
Client C came to attorney A’s office carrying a mysterious package about the
size of a shoebox. C explained that federal narcotics agents were looking for
C in connection with the illegal importation of a significant quantity of uncut
heroin; C told A that he had no connection with any heroin or any other drug
trade. A agreed to represent C, and he asked C for a $5,000 advance on attor-
neys’ fees. C replied that he had no ready cash, but that he would entrust A with
the mysterious package, assuring A that its contents were worth much more
than $5,000. A was uncertain about his ethical obligations in this situation so he
excused himself, went to another room, and telephoned T, his old legal ethics
professor. After disclosing enough facts to give T the essence of the problem—
but not enough to disclose C’s identity or the precise circumstances—A asked T
for legal ethics advice. A’s disclosure was proper. [Id.]

g. Disclosure to Detect and Resolve Conflicts of Interest

When a lawyer changes firms, when two firms merge, or when a law practice
is being purchased, lawyers may disclose limited client information (e.g., client
names and a brief summary of the general issues involved) in order to detect
and resolve conflicts of interest, subject to four conditions: (1) the disclosure may
be made only after substantive discussions regarding the new relationship have
occurred; (2) the disclosure must be limited to the minimum necessary to detect
any conflicts of interest; (3) the disclosed information must not compromise the
attorney-client privilege or otherwise prejudice the clients; and (4) the disclosed
 PROFESSIONAL RESPONSIBILITY 57.

information may be used only to the extent necessary to detect and resolve any
conflicts of interest. [ABA Model Rule 1.6(b)(7) and comments 13 and 14]

h. Disclosure Required by Law or Court Order

ABA Model Rule 1.6(b)(6) permits a lawyer to reveal her client’s confidential
information to the extent that she is required to do so by law or court order.

EXAMPLES
1) Suppose that a federal anti-terrorism statute arguably requires lawyer L to
reveal the whereabouts of client C, who is suspected of illegal entry into the
United States. If L knows of C’s whereabouts only because of a confidential
communication from C, the information is protected by both the attorney-client
privilege and the ethical duty of confidentiality. L must first determine whether
the anti-terrorism statute purports to supersede the privilege and ethical duty.
[See ABA Model Rule 1.6, comment 12] If L concludes that it does, she must next
disclose the situation to C because this is the kind of vital information that a law-
yer must communicate to a client. [See ABA Model Rule 1.4(a)(3)] If L cannot find
a nonfrivolous ground for challenging the validity or applicability of the statute,
ABA Model Rule 1.6(b)(6) permits her to reveal the information about C’s where-
abouts. [See ABA Model Rule 1.6, comments 12 and 13]
2) In the situation described in 1), above, suppose that a federal district judge is
considering whether to order L to disclose C’s whereabouts. Absent C’s in-
formed consent to the disclosure, L should assert all nonfrivolous grounds for
not disclosing the information. If the court orders disclosure, L should consult
with C about an appeal. If no appeal is taken, or if the order is upheld on ap-
peal, then ABA Model Rule 1.6(b)(6) permits L to reveal the information about C’s
whereabouts. [Id.]

3. Protecting Confidential Information

A lawyer must make reasonable efforts to protect a client’s confidential informa-
tion from inadvertent or unauthorized disclosure by the lawyer and those under the
lawyer’s supervision, and from unauthorized access by third parties. [ABA Model
Rule 1.6(c)] The reasonableness of the lawyer’s efforts is determined by consid-
ering such factors as the sensitivity of the client’s information, the cost of additional
safeguards, and the difficulty of implementing the safeguards. [ABA Model Rule 1.6,
comment 18]

IV. CONFLICTS OF INTEREST

A. THE GENERAL RULES CONCERNING CONFLICTS OF INTEREST

Loyalty is an essential element in the relationship between a lawyer and client. The
lawyer’s professional judgment must be exercised solely for the benefit of the client, free
58. PROFESSIONAL RESPONSIBILITY

of compromising influences and loyalties. [See Restatement §§121 - 135—restates the law
of conflicts of interest; see also ABA Model Rule 1.7, comment 1] Thus, absent the neces-
sary informed consent (see B.2., infra), a lawyer must not represent a client if a conflict of
interest exists.

1. Consequences of a Conflict of Interest

If a conflict of interest is apparent before a lawyer takes on a client’s matter, then
the lawyer must not take it on. [ABA Model Rule 1.7(a)] If a conflict becomes apparent
only after the lawyer has taken on the client’s matter, and if informed consent of the
affected client(s) will not solve the problem, then the lawyer must withdraw. [ABA
Model Rule 1.16(a)(1); ABA Model Rule 1.7, comment 4] A lawyer’s failure to handle
a conflict properly can have three unpleasant consequences: (1) disqualification as
counsel in a litigated matter, (2) professional discipline, and (3) civil liability for legal
malpractice.

2. Imputed Conflicts of Interest

Generally, lawyers who practice together in a “firm” are treated as a single unit
for conflict of interest purposes. That is, when one of the lawyers cannot take on
a matter because of a conflict of interest, the other lawyers in the “firm” are also
barred from taking on that matter. [ABA Model Rule 1.10(a)] The conflict is said to be
“imputed” from the first lawyer to the other lawyers.

a. Meaning of “Firm”
The term “firm” includes not only an ordinary private law firm, but also other
groups of lawyers who practice closely together, such as lawyers in a corpo-
rate law department, legal aid office, or prosecutors’ or public defenders’ office.
[See ABA Model Rule 1.0(c) and comments 2 - 4] Whether a group of lawyers
should be regarded as a “firm” for conflict of interest purposes depends on
many factors, including: (1) do the lawyers have a formal agreement among
themselves, (2) do they hold themselves out in a way that would make the
public think they practice together as a firm, (3) do they share their revenues
and responsibilities, (4) do they have physical access to each other’s client
files, (5) do they routinely talk among themselves about the matters they are
handling, and (6) would the purpose of the particular conflict rule be served by
imputing one lawyer’s conflict to other lawyers in the group?

b. Exceptions to Imputed Disqualification

1) Conflict Based on Uniquely Personal Interest of Lawyer

As will be seen in the paragraphs below, some kinds of conflicts are not
imputed to other lawyers in the firm. Generally, these conflicts are uniquely
personal to the lawyer in question, which makes it unlikely that other
lawyers in the firm would have divided loyalties. [ABA Model Rule 1.10(a)
and comment 3]
 PROFESSIONAL RESPONSIBILITY 59.

EXAMPLE
Client C hires attorney A to defend her in a copyright infringement action.
After A takes on C’s case, C commences a sexual relationship with lawyer
L, who is one of A’s law partners. ABA Model Rule 1.8( j) prohibits a lawyer
from starting a sexual relationship with a client (see C.9., infra); therefore, L
would be subject to discipline if he himself were defending C in the copy-
right case. However, L’s conflict is uniquely personal to L and is not likely to
affect the way L’s partner A handles C’s case. Thus, L’s conflict is not im-
puted to partner A.

2) Specific Situations Involving Lawyer’s Former Dealings—Screening

and Notice
As discussed in more detail infra, in certain situations involving conflicts
based on a lawyer’s former employment, or former consultation with a
prospective client, the imputation will be cured provided the disqualified
lawyer is timely screened from participation in the matter (does not have
access to files, etc.) and is apportioned no part of the fee from the matter
(apart from their normal salary or partnership share). Written notice of the
procedures must promptly be given to the affected client or person. [ABA
Model Rule 1.10(a)(2)]

B. CONFLICTS OF INTEREST—CURRENT CLIENTS

1. Concurrent Conflicts of Interest
Except on the conditions stated in 2., below, a lawyer must not represent a client
if the representation creates a concurrent conflict of interest. A concurrent conflict
exists in two situations:

a. The representation of one client will be directly adverse to another client; or

b. There is a significant risk that the representation of one client will be materially
limited by the lawyer’s own interest or by the lawyer’s responsibilities to another
client, a former client, or a third person.

[ABA Model Rule 1.7(a)]

EXAMPLE
Client C asked attorney A to defend her in a vehicular manslaughter case in which C
is charged with killing victim V while driving drunk. Unbeknownst to C, V was A’s col-
lege roommate, and they remained best friends until V’s death. There is a significant
risk that A’s efforts on C’s behalf would be materially limited by A’s personal grief at
the loss of his best friend. Therefore, A must not take on C’s case.
60. PROFESSIONAL RESPONSIBILITY

2. Informed Consent Can Solve Some Conflicts

Despite a concurrent conflict of interest, a lawyer may represent a client if all four
of the following conditions are satisfied: (1) the lawyer reasonably believes that he
can competently and diligently represent each affected client, despite the conflict of
interest; (2) the representation is not prohibited by law; (3) the representation does
not involve asserting a claim by one client against another client represented by that
lawyer in the same litigation (or other proceeding before a tribunal); and (4) each
affected client gives informed consent, confirmed in writing. [ABA Model Rule 1.7(b)]

a. Consent Must Meet Reasonable Lawyer Standard

Notice that the consent rule creates a reasonable lawyer standard. That is, if a
reasonable lawyer looking at the facts would conclude that the client’s interests
would not be adequately protected in light of the conflict, then the conflict is
unconsentable, meaning that the client’s consent will not solve the conflict. [See
ABA Model Rule 1.7, comments 14 and 15; and see ABA Op. 05-436]

EXAMPLE
General practitioner G represents husband H in legal matters arising out of the
investment of H’s inherited fortune. G has represented H for many years, and he
knows all of H’s innermost secrets, both financial and personal. Now wife W has
asked G to represent her in obtaining a divorce from H. In light of all of the con-
fidential information G has learned about H over the years, a reasonable lawyer
would have to advise H not to consent to the conflict of interest. Thus, even if H
did consent, the consent would not solve the conflict.

b. Consent Must Be Informed

Only informed consent will solve a conflict. That means that the affected client is
aware of all of the relevant circumstances, reasonable alternatives, and foresee-
able ways the conflict might harm her. [See ABA Model Rule 1.0(e); ABA Model
Rule 1.7, comment 18] Sometimes a lawyer cannot obtain informed consent from
one client without revealing a fact that she learned in confidence from another
client; if the second client will not permit the lawyer to reveal that confidence, then
the lawyer cannot represent the first client; consent will not solve the conflict.

c. Consent Must Be Confirmed in Writing

A consent that is merely oral will not solve a conflict. The consent must be
“confirmed in writing.” Usually that means either of two things: (1) there is a
tangible or electronic record that is physically or electronically signed by the
client; or (2) there is an oral consent that is promptly memorialized in a tangible
or electronic record that is promptly sent to the client. [See ABA Model Rule
1.0(b), (n); ABA Model Rule 1.7, comment 20] But note: The client’s consent to an
aggregate settlement or a business transaction with the lawyer must be signed
by the client (see C.2.a. and C.7., infra). [ABA Model Rule 1.8(a), (g)]
 PROFESSIONAL RESPONSIBILITY 61.

1) Rationale
The writing requirement has two purposes: (1) it helps impress on the client
that consent to a conflict is a serious matter, and (2) it helps avoid later
disputes that might arise if there were no writing.

d. Must Not Be on Both Sides of Litigation

Even if the clients consent, a lawyer must not assert a claim on behalf of one
client against another client represented by that lawyer in the same litigation
(or other proceeding before a tribunal). In other words, the lawyer cannot be
on both sides of the same proceeding. However, in a transactional matter, the
lawyer may be able to address the conflict and act for both parties.

e. Revocation of Consent
Just as a client can almost always fire a lawyer, the client can almost always
revoke a previously given consent to a conflict. [ABA Model Rule 1.7, comment
21] The revocation may or may not mean that the lawyer can continue repre-
senting other clients in the matter, depending on the particular facts. [Id.]

f. Consent to Future Conflicts

A lawyer may properly ask a client to consent to conflicts that may arise in the
future, but only if it is reasonable to do so, and only if the client truly under-
stands the particular kinds of conflicts that may arise and the consequences of
consenting. [ABA Model Rule 1.7, comment 22; and see ABA Op. 05-436]

EXAMPLE
The standard contract that a firm of class action lawyers uses when signing up
class representatives provides that: “Client hereby consents to and waives any
and all conflicts of interest, both present and future.” The contract does not ex-
plain the possible present or future conflicts, nor do the lawyers offer any explana-
tion when they sign up the class representatives. The consent provision is invalid.

3. Specific Conflict Situations Concerning “Direct Adversity” Between Clients’

Interests
ABA Model Rule 1.7(a) prohibits a lawyer from representing one client whose inter-
ests are directly adverse to those of another client, unless both of the affected
clients give their informed consent, confirmed in writing. The following examples
show the bounds of “direct adversity.”

EXAMPLES
1) Lawyer L represents patent owner O in connection with the licensing of O’s patent.
Manufacturer M is one of O’s licensees, but M does not realize that L represents O.
M asks L’s law partner P to sue O for a declaratory judgment that O’s patent is invalid
and that O’s license agreements are void. Obviously, L herself could not represent M
62. PROFESSIONAL RESPONSIBILITY

because M’s interests are directly adverse to O’s interests. L’s conflict is imputed to
her law partner P. A reasonable lawyer would advise O and M not to consent to this
conflict. Moreover, consent will not solve the conflict when one client sues another
client represented by the lawyer in the same litigation. [See ABA Model Rule 1.7(b)(3)]
Therefore, P must not represent M.
2) Attorney A represents GenCorp, a genetic engineering company that is working
on a cure for melanoma. A’s law partner P represents BioTek, another genetic en-
gineering company that is working on an entirely different way to cure melanoma.
BioTek and GenCorp are head-to-head adversaries in an economic sense, but their
interests are not adverse in any legal sense. If A and her partner P can disclose the
situation to their respective clients without revealing confidential information, they
may do so for the sake of client goodwill, but they would not be subject to discipline
for failing to do so. [See ABA Model Rule 1.7, comment 6]
3) Lawyer L is defending D, who is accused of the armed robbery of a liquor store. L
is stunned when he sees the prosecutor’s witness list because it includes Z, a pur-
ported eyewitness to the armed robbery. L knows Z very well because he is defend-
ing Z in a drunk driving case. From confidential information L gathered in the drunk
driving case, L knows that Z is an alcoholic who sometimes sees things that are
not there and sometimes remembers things that did not happen. In defending D, L
will have to cross-examine Z about his capacity to perceive, remember, and relate
events accurately. If L cross-examines Z vigorously, he might seem to be using in-
formation about Z that he learned in confidence, or at least Z might think so. On the
other hand, if L soft-pedals the cross-examination of Z, D might think he is not get-
ting the effective assistance of counsel. A reasonable lawyer would have to advise D
and Z not to consent to this conflict of interest. L must seek the court’s permission to
withdraw from one case or the other, preferably the case in which his withdrawal will
be least harmful to the client. [See ABA Model Rule 1.7, comment 6]
4) Attorney A represents client C as plaintiff in an employment discrimination case
against Mack’s Grill. While that matter is pending, one of A’s regular clients, Grinch
Rentals, Inc., asks A to represent it in unlawful detainer proceedings to have C
thrown out of her apartment for failure to pay rent. Even if the two cases are com-
pletely unrelated, A faces a conflict of interest. If A agrees to represent Grinch, C
could feel betrayed by her own lawyer, and that could destroy A’s ability to represent
C effectively in the employment discrimination case. [See ABA Model Rule 1.7, com-
ment 6] Would the conflict be solved by getting informed consent, confirmed in writ-
ing, from both C and Grinch? Comment 6 suggests that it could. (Do you agree?)
5) Lawyer L represents buyer B in negotiations for the purchase of a run-down shop-
ping center from seller S. While those negotiations are in progress, S seeks to hire
L to represent it in negotiations with the Planning Commission of a different city
concerning an urban renewal project S wants to pursue. The shopping center sale is
totally unrelated to the urban renewal project. Nevertheless, L must not represent S
 PROFESSIONAL RESPONSIBILITY 63.

without first getting informed consent, confirmed in writing, from both B and S. [See
ABA Model Rule 1.7, comment 7]

a. Unnamed Members of a Class Do Not Count as Clients

In class action litigation, the unnamed members of a class ordinarily are not
regarded as clients for purposes of the “direct adversity” conflicts rule. [ABA
Model Rule 1.7, comment 25]

EXAMPLE
Lawyer L is presently representing victim V in a medical malpractice case
against Dr. D. Today, United Motors Corp. asked L to defend it in a class action
case that is unrelated to the malpractice case. V is not a named plaintiff in the
class action, but she will be a member of the class if the court eventually certi-
fies the case as a class action. L does not need to obtain V’s consent before
agreeing to defend United Motors. [Id.]

4. Specific Conflict Situations Concerning “Material Limitation”

The discussion in 3., above, concerned conflicts caused by “direct adversity”
between the interests of two clients. ABA Model Rule 1.7 also covers a second kind
of conflict—situations in which there is a significant risk that the lawyer’s representa-
tion of a client will be materially limited by the lawyer’s own personal interests or by
the lawyer’s responsibilities to: (1) a different client, (2) a former client, or (3) a third
person. [ABA Model Rule 1.7(a)(2)] When there is such a risk, the lawyer must not take
on the matter (or must withdraw), unless each affected client gives informed consent,
confirmed in writing. Illustrations of these “material limitation” conflicts are discussed
in a. through e., below.

a. Representing Multiple Clients in the Same Matter

1) Co-Parties in Criminal Litigation

The Sixth Amendment guarantees every criminal defendant the right to
effective assistance of counsel. Because the interests of criminal co-defen-
dants are very likely to diverge, ordinarily a lawyer should not try to
defend two people in a criminal case. [ABA Model Rule 1.7, comment 23]
If a trial judge requires two criminal defendants with divergent interests
to share a single lawyer, and if they are prejudiced as a result, their Sixth
Amendment rights have been violated. [See Strickland v. Washington,
466 U.S. 668 (1984); Cuyler v. Sullivan, 446 U.S. 335 (1980)] Here are four
examples of divergent interests:

a) One defendant seeks to put the blame on the other;

b) The story told by one defendant is inconsistent with the story told by
the other;
64. PROFESSIONAL RESPONSIBILITY

c) One defendant has a strong defense that is compromised to protect

the other; and

d) The trial tactics that would help one would harm the other.

2) Co-Parties in Civil Litigation

In civil litigation, one lawyer may represent multiple plaintiffs or defendants
whose interests are potentially in conflict. However, the conflict must be
addressed in accordance with 4), below. [See ABA Model Rule 1.7, comment
23] The advantages of having a single lawyer are obvious: the cost will
probably be lower than having two lawyers, and the single lawyer can
present a united front for both clients. The disadvantages are also obvious:
the interests of the clients may be mostly harmonious but partly or poten-
tially in conflict (e.g., one personal injury plaintiff may need money badly
and may therefore be anxious to accept a joint settlement offer that the
other plaintiff thinks is too low).

3) Nonlitigation Matters
Lawyers are often asked to represent more than one client in nonlitiga-
tion matters. Whether that creates a conflict of interest depends on many
factors, including the length and intimacy of the lawyer’s relationship with
one or more of the clients, the kind of work the lawyer is asked to do, the
chances of disagreement between the clients, and the consequences to
the clients if the joint representation breaks down. [See ABA Model Rule
1.7, comment 26] If there is a conflict, the lawyer must follow the steps in
4), below.

EXAMPLES
1) Clients X, Y, and Z ask lawyer L to represent the three of them in forming
a new business venture. X will supply the capital, Y will supply a valuable
trade secret, and Z will supply the managerial skill. Although their inter-
ests are mostly harmonious, there are potential conflicts. For instance, if
the venture folds, who will own the trade secret? L may represent all three
clients if she follows the four steps outlined in 4), below.
2) Estate planning attorney E is asked to prepare estate plans and wills for
four members of a family—G (the wealthy grandmother), H and W (the ir-
responsible parents), and D (the talented daughter). All four have the same
basic goals: to maximize the family’s wealth and to allocate it rationally.
However, their interests are potentially in conflict. For instance, H and W
may want to get their hands on money that G wants to preserve for D. E
may represent all of the family members if she follows the four steps out-
lined in 4), below.
 PROFESSIONAL RESPONSIBILITY 65.

4) Handling Multiple Representation Conflicts

In both litigation and nonlitigation matters, there is a four-step guide for
handling this situation:

a) First, the lawyer should analyze the facts of the case and the appli-
cable law. If she concludes that she can effectively represent both
clients, despite their potentially conflicting interests, then she can
move to the second step. [See ABA Model Rule 1.7, comment 15]

b) Second, the lawyer should disclose the potential conflict to each

client and explain how it can harm each client, the reasonably available
alternatives, and the disadvantages of having only one lawyer for the
two of them (see 6), below). [See ABA Model Rule 1.7, comment 18]

c) Third, when the clients fully understand the situation, the lawyer may
invite their informed consent to the joint representation and confirm
such consent in writing. [Id.]

d) Fourth, if the potential conflict eventually ripens into a present

conflict, the lawyer must repeat steps a), b), and c), above. The lawyer
must withdraw from the joint representation if a reasonable lawyer
would have to advise either of the two clients not to consent. [See ABA
Model Rule 1.7, comments 4, 14, and 15] The lawyer may continue to
represent one consenting client, but only if the client who is dropped
gives informed consent to the continuation, confirmed in writing. [See
ABA Model Rule 1.9(a)]

EXAMPLE
Attorney A agreed to defend Ace Corp. and Bay Corp. in a negligence
case. At the outset, A believed that neither Ace nor Bay caused the
harm to the plaintiff. A went through steps a), b), and c), above, and ob-
tained Ace’s and Bay’s informed, written consent to the joint represen-
tation. Discovery revealed that Ace had a credible defense, but that
Bay was very likely negligent, and that its negligence probably harmed
the plaintiff. A repeated steps a), b), and c), at which point Ace insisted
on obtaining a separate lawyer. A may continue representing Bay, but
only if Ace gives informed consent, confirmed in writing (under ABA
Model Rule 1.9(a)), and Bay gives informed consent, confirmed in writ-
ing (under ABA Model Rule 1.7(b)).

5) Special Problems of Representing More than One Client

A lawyer must be impartial in dealing with the multiple clients. If the
relationships among the clients are already antagonistic, or if contentious
66. PROFESSIONAL RESPONSIBILITY

negotiations or litigation is on the horizon, a single lawyer ordinarily should

not try to represent all of the clients. [ABA Model Rule 1.7, comment 29]

a) Confidentiality and Privilege Problems

In litigation between two people who were formerly joint clients of a
single lawyer, neither of them can claim the attorney-client privilege
for their communications with that lawyer. [See Restatement §75] That
is one disadvantage of having one lawyer for multiple clients, and the
lawyer should warn the clients about it before undertaking multiple
representation. Moreover, a multiple representation is unlikely to work
if one client wants to disclose material to the lawyer in confidence and
wants to keep it confidential from the other clients. [ABA Model Rule
1.7, comment 31] Therefore, the lawyer should ordinarily make clear
to all clients at the outset that whatever one client discloses will be
shared with all of the other clients. [Id.] In special situations, however,
the clients may agree that one of them may disclose a given item of
information to the lawyer but not to the other clients.

EXAMPLE
Clients X, Y, and Z hire attorney A to represent all of them in forming a
new business venture. Z’s contribution to the business will be a valu-
able invention. Z has applied for a patent, but until a patent issues, the
specifics of the invention are protected as Z’s trade secret. X, Y, and
Z may agree that Z may disclose the specifics of the invention to A in
confidence and that A will not share that information with X or Y.

b. Representing Two Clients with Inconsistent Legal Positions in Two Unrelated

Cases
Suppose a lawyer represents two clients in different cases that are pending in
different tribunals. On behalf of Client One, the lawyer needs to argue that a
certain statute is unconstitutional. On behalf of Client Two, the lawyer needs to
argue that the same statute is constitutional. Aside from that legal issue, the cases
are unrelated. On those bare facts, there is no conflict of interest between Client
One and Client Two. [ABA Model Rule 1.7, comment 24] Suppose, however, that
Client One’s case will be heard next week in the intermediate appellate court that
hears cases from Judicial District Six. Client Two’s case will be tried seven months
from now in a trial court in Judicial District Six. Thus, the appellate court’s decision
in Client One’s case is likely to become the controlling precedent in Client Two’s
case. That presents a substantial risk that the lawyer’s representation of one client
will be materially limited by her responsibilities to the other client. [Id.] Therefore,
the lawyer must fully disclose the situation to both clients and seek their informed
consent, confirmed in writing. If either or both clients will not consent, the lawyer
must seek the court’s permission to withdraw from one or both cases. [Id.]
 PROFESSIONAL RESPONSIBILITY 67.

c. Conflicts Caused by Lawyer’s Own Interests

If a lawyer’s own interests are likely to materially limit her ability to represent a
client effectively, then she must not take on the matter (or she must withdraw)
unless she obtains the client’s informed consent, confirmed in writing. [See ABA
Model Rule 1.7(a)(2)] The following paragraphs illustrate some of the lawyer’s
interests that may create a conflict. Additionally, note that there is a specific
conflicts rule regarding sexual relationships with clients (see C.9., infra).

1) Lawyer’s Financial Interest

A conflict of interest may be created by a lawyer’s own financial interest.
Suppose that attorney A is representing client C in a gender discrimina-
tion action against Magnum Corp. After one of the pretrial hearings, the
general counsel of Magnum spoke quietly to A in the courthouse hallway,
saying: “Your courtroom skills are first-rate. When you want to start playing
in the big leagues, please come to see me—our law department could
really use a person like you, and we pay top money.” If the employment
overture creates a substantial risk that A will curry favor with Magnum at C’s
expense, A must fully disclose the situation to C and obtain C’s informed
consent, confirmed in writing, before continuing as C’s counsel.

2) Lawyers Who Are Close Relatives

A conflict of interest also may be created by a lawyer’s relationship to
another lawyer. Suppose that lawyer L is a partner in the J, K, & L firm. L
lives with her parents, and her mother M is the senior litigation partner of
the M, N, & O firm. M regularly serves as trial counsel for the Kansas Central
Railway Co. in railway accident cases. L’s regular client C was badly injured
when his car was struck at a crossing by one of Kansas Central’s trains,
and C asked L to represent him in a suit against Kansas Central. If L serves
as C’s lawyer, and M serves as Kansas Central’s lawyer, there is a risk
that client confidences may be compromised (e.g., if M takes a telephone
message at home for L, M may inadvertently learn something confidential
about C). [ABA Model Rule 1.7, comment 11] Moreover, the family relation-
ship may interfere with the loyalty or independent judgment of the two
lawyers. [Id.] Thus, L and M must each disclose the situation to their respec-
tive clients and must not proceed without their respective client’s informed
consent, confirmed in writing. The same is true of other lawyers who are
closely related by blood or marriage (e.g., parent, child, spouse, or sibling).
This kind of conflict is personal in nature and is ordinarily not imputed to
other lawyers in a firm. [Id.]

d. Conflict Between Client’s Interest and Third Person’s Interest

Sometimes the interest of a third person may create a substantial risk of materi-
ally limiting the lawyer’s ability to represent the client effectively. [ABA Model
Rule 1.7(a)(2)] When that is true, the lawyer may represent the client, provided
68. PROFESSIONAL RESPONSIBILITY

that: (1) the lawyer reasonably believes that the third person’s interest will not
adversely affect the representation; and (2) the client gives informed consent,
confirmed in writing. [ABA Model Rule 1.7(b)]

EXAMPLES
1) Carter Corp. and its executive vice president K were indicted for mail fraud in
connection with the interstate sale of certain investment properties. The bylaws
of Carter Corp. provide that the corporation will pay for separate legal represen-
tation of any officer accused of wrongdoing in the course of the corporation’s
business; however, there is no provision for indemnifying officers who are found
guilty of wrongdoing. Carter Corp. asks lawyer L to provide the necessary sepa-
rate representation for K. L’s fee will be paid by Carter Corp. L may represent K
if: (1) the arrangement between Carter Corp. and L assures L’s independence,
(2) L reasonably believes that he can represent K effectively, and (3) K gives
informed consent, confirmed in writing.
2) The United Coastal Charities Fund offers to pay attorney A’s fee for drafting
the will of any person who leaves a bequest of $2,000 or more to the Fund. If A
agrees to the arrangement, he will be subject to discipline. [New York City Bar
Op. 81-69 (1981)]
3) Lawyer L is a staff attorney for the County Legal Aid Society. Her salary is set
by the board of directors of the Society, but her clients are those who come to
the Society for legal assistance and are assigned to L. The board of directors
may set general operating policies, but L must not allow the board of directors
to influence her independent legal judgment about how to handle a particular
client’s legal matter. [ABA Model Rule 5.4(c); ABA Formal Op. 334 (1974)]

e. Conflicts Raised by Liability Insurance

1) Policyholder’s Interests
Liability insurance policies commonly provide that the insurance company
will select and pay for a lawyer to defend the policyholder in suits arising
out of events covered by the policy. The policyholder, in turn, promises
to cooperate with the defense. Generally, the policyholder wants a claim
handled in a way that minimizes his risk of paying money out of his own
pocket (e.g., if the policy limit is $50,000, but the claimant wins a judgment
for $60,000, the policyholder would have to pay the $10,000 difference
from his own pocket).

2) Insurance Company’s Interests

The insurance company generally wants a claim handled in a way that
minimizes what it must pay, whether in litigation costs or payments to a
claimant. To minimize litigation costs (and thus to keep insurance premiums
 PROFESSIONAL RESPONSIBILITY 69.

affordable), some insurance companies adopt spending limits and audit

procedures that limit the defense lawyer’s fees and expenses for various
steps in the litigation process. Insurance defense lawyers have complained
that these limits sometimes undercut their ability to represent policyholders
effectively.

3) Whom Does the Defense Lawyer Represent?

Does an insurance defense lawyer represent the policyholder (a person
he is likely to encounter only once) or the insurance company (which pays
his fees and can send him repeat business)? Curiously, the law on this
question varies from state to state. [See ABA Formal Op. 01-421, notes 6, 7
(2001)] Some states say that the client is the policyholder only, but others
say that the policyholder and the insurance company are joint clients.
[See Restatement §134, comments a and f—insurance law and contract
law determine who is the client] No matter whether the defense lawyer
represents the policyholder only or both the policyholder and the insur-
ance company, the defense lawyer’s ethical obligations are governed by
the Rules of Professional Conduct and not by the insurance contract. [ABA
Formal Op. 01-421]

4) Conflicts Between Insurance Company and Policyholder

Most of the time, the insurance company’s interests are in harmony with
those of the policyholder. Both of them want to see the claim defeated
or settled at the least possible expense. Their respective interests can,
however, come into conflict, as in the following examples.

a) Is the Event Covered by the Policy?

Suppose that G drove her car over her boyfriend B in circumstances
that make it unclear whether G acted intentionally or only negligently.
B sued G, alternatively alleging negligence and intentional conduct.
G’s auto liability policy covers negligence, but not intentional conduct.
G’s insurance company hired lawyer L to defend the case, but it sent
G a “reservation of rights” letter, informing her that it might ultimately
contend that G acted intentionally, thus freeing the company from
liability. During pretrial preparation, G told L in confidence that she ran
over B intentionally. L must not disclose that confidential information to
the insurance company. [See Parsons v. Continental National American
Group, 550 P.2d 94 (Ariz. 1976)] If G’s confidential statement means
that L cannot defend G effectively, L must withdraw. [Restatement §134,
comment f]

b) Settlement Within the Policy Limits

Suppose that Insco Insurance Co. hires attorney A to defend policy-
holder D in a slip-and-fall case brought by P. The liability limit in D’s
70. PROFESSIONAL RESPONSIBILITY

policy is $100,000, and P offers to settle for $90,000. D wants to settle

because that would free him from paying P anything from his own
pocket. Insco, on the other hand, might rather go to trial because its
exposure is only $10,000 more than the settlement offer. The settle-
ment offer creates a conflict of interest that has the following conse-
quences: (1) A and Insco must disclose the conflict to D and invite D
to obtain independent counsel (at Insco’s expense) to advise D on the
settlement issue; (2) if A fails to do that and negligently or in bad faith
advises D to reject the settlement offer, A is subject to discipline and
perhaps civil liability to D for malpractice; and (3) if Insco negligently or
in bad faith rejects the settlement offer, Insco will be liable for the entire
judgment P obtains against D, even the amount over the policy limits.
[Easley v. State Farm Mutual Insurance Co., 528 F.2d 558 (5th Cir. 1976)]

c) Settlement Controlled by Insurance Company

Although the policyholder is usually glad to have the insurance
company settle a claim within the policy limits, that is not always
true. For example, a physician might not want her malpractice insur-
ance company to settle for fear that the settlement will tarnish her
medical reputation. Some insurance policies authorize the insurance
company to control the defense and to settle within the policy limits at
the company’s sole discretion. In that situation, a lawyer hired by the
insurance company must inform the policyholder, as early in the case
as possible, about the constraints on the representation. Having done
that, the lawyer may then follow the insurance company’s instructions
about settlement. If the lawyer knows that the policyholder objects
to a settlement, the lawyer must not proceed without first giving the
policyholder a chance to reject the insurance company’s defense and
to assume responsibility for her own defense at her own expense.
[ABA Formal Op. 96-403]

d) Unreasonable Limits on Defense Fees and Expenses

Seeking to control litigation costs, some insurance companies insist
on detailed audits of a defense lawyer’s time records and litigation
files. Some companies also limit the amount a defense lawyer can
spend in preparing the case for trial. Some companies use “litigation
managers” who look over the lawyer’s shoulder and sometimes try
to micromanage the defense. A defense lawyer must not disclose a
policyholder’s confidential information to an outside auditor without
the policyholder’s informed consent, but he may disclose bills and time
records containing confidential information to the insurance company
itself if doing so will aid, not harm, the policyholder. [ABA Formal Op.
01-421] Furthermore, a defense lawyer must refuse to follow insur-
ance company litigation management guidelines that interfere with
 PROFESSIONAL RESPONSIBILITY 71.

the lawyer’s professional judgment or prevent the lawyer from repre-

senting the policyholder competently. If the insurance company will not
relent, the lawyer must withdraw. [Id.]

C. CONFLICTS OF INTEREST—SPECIFIC RULES FOR CURRENT CLIENTS

The discussion in B., supra, covered the general principles concerning conflicts of interest
that involve one or more current clients, which is the subject matter of ABA Model Rule
1.7. However, some kinds of conflicts arise time and time again in law practice. They are
so common that the drafters of the ABA Model Rules devised specific rules to deal with
them. These rules are the subject matter of ABA Model Rule 1.8, discussed below.

1. Misuse of Client’s Confidential Information

As was discussed previously in III.A., supra, a lawyer has a duty not to disclose infor-
mation relating to the representation of a client, except when an exception to the
duty of confidentiality applies. In addition, a lawyer must not use such information to
the client’s disadvantage, unless the client gives informed consent or some other
exception to the duty of confidentiality applies. [See ABA Model Rule 1.8(b)] The
same rule applies to misuse of a former or prospective client’s confidential informa-
tion. [See ABA Model Rules 1.9(c)(1), 1.18(b)]

EXAMPLE
Prospective client P came to patent attorney A’s office, seeking to hire A to file a pat-
ent application on P’s behalf. In the course of their preliminary discussions, P told A
what chemical compound he uses to make his invention work. P ultimately decided
not to hire A. A then told one of his other inventor clients about the chemical com-
pound, and that client used the information in a way that prevented P from obtaining
a patent. A is subject to discipline. [See ABA Model Rule 1.18(b)]

a. Use to Benefit Lawyer or Someone Else

The rule applies not only when the lawyer uses the information for the lawyer’s
own benefit, but also when the lawyer uses it to benefit someone else, such as
another client or a third party.

EXAMPLE
While representing client Chez Nous Catering Co., lawyer L learned that Chez
Nous was teetering on the edge of insolvency. L knew that his good friend F
had contracted with Chez Nous to cater F’s daughter’s big wedding reception. L
advised F to cancel the contract and hire a different caterer. L is subject to disci-
pline for using the information to the disadvantage of Chez Nous.

b. Possible Civil Liability Even When Client Is Not Disadvantaged

Note that the rule applies only when the lawyer’s misuse of confidential infor-
mation disadvantages the client, former client, or prospective client. However,
72. PROFESSIONAL RESPONSIBILITY

a lawyer who uses the confidential information for his own pecuniary gain
(other than in the practice of law) may be subject to civil liability—i.e., he may
have to account to the client, former client, or prospective client for his profits.
[Restatement §60(2)]

EXAMPLE
Attorney A’s client C told A in confidence that she was about to build a large new
medical complex on the corner of 5th and Main Streets. Without telling C, A qui-
etly bought land at 4th and Main and built a four-story parking garage to serve
the new medical complex. The garage did not harm C; in fact it was a benefit to
her. Nevertheless, A must disgorge the garage profits to C because A used C’s
confidential information to enrich himself other than in the practice of law.

2. Business Transactions with Client and Money or Property Interests Adverse to

Client

a. Statement of the Rule

A lawyer’s professional training, together with the bond of trust and confidence
between a lawyer and client, create a risk that the lawyer can overreach the
client in a business, property, or financial transaction. Therefore, a lawyer must
not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security, or money interest that is adverse to a client,
unless all of the following conditions are satisfied:

1) The terms of the business transaction (or the terms on which the interest is
acquired) are fair to the client;

2) The terms are fully disclosed to the client in writing, expressed in a manner
that the client can reasonably understand (i.e., not in technical legal termi-
nology). The lawyer’s disclosure to the client must cover the essential
terms of the transaction and the lawyer’s role in the transaction (including
whether the lawyer is acting as the client’s lawyer in the transaction);

3) The client is advised in writing that he should get the advice of an

independent lawyer about the arrangement before entering into it (and the
client must be given a reasonable chance to obtain that advice); and

4) The client gives informed consent, in a writing that the client signs.

[ABA Model Rule 1.8(a)]

b. Outer Limits of the Rule

The lawyer need not advise the client to consult independent counsel if the
client already has independent counsel in the matter. Moreover, if the client has
 PROFESSIONAL RESPONSIBILITY 73.

independent counsel, the disclosure of conflict can be made by the indepen-

dent counsel. Finally, the rule about business transactions and adverse interests
does not apply to an ordinary fee agreement between a lawyer and client or to
standard commercial transactions in which the lawyer buys goods or services
that the client routinely markets to the public (e.g., the lawyer who buys a car
from his car dealer client or the lawyer who uses a client as her stockbroker).
[See ABA Model Rule 1.8, comments 1 - 4]

3. Proprietary Interest in Subject of Litigation

Except as permitted below, a lawyer must not acquire a proprietary interest in the
cause of action or the subject matter of litigation that the lawyer is conducting for
the client. [ABA Model Rule 1.8(i); Restatement §36(1)]

EXAMPLES
1) Lawyer L regularly does consumer loan collection work for American Consumer
Finance Company. When one of American’s debtors defaults, American assigns the
debt and cause of action to L; in return, L immediately pays American 50% of the
face value of the debt. If L ultimately collects more than the 50%, she pays half of the
excess to American and keeps the other half. L is subject to discipline.
2) F owns a United States patent on a process for manufacturing fertilizer. R brings a
declaratory judgment action against F, alleging that F’s patent is invalid. Attorney A
agrees to represent F in the declaratory judgment action in exchange for an assign-
ment of a one-half ownership interest in F’s patent. A is subject to discipline.

a. Contingent Fee Exception

Despite the rule stated above, a lawyer may enter into a contingent fee arrange-
ment with a client in a civil case. A contingent fee arrangement gives the lawyer
a personal stake in the outcome of the case and may thus affect the lawyer’s
objectivity. This arrangement is thus clearly at odds with the spirit of the rule.
Nevertheless, because contingent fees have been so long tolerated in the
United States, they are excepted from the rule. [See ABA Model Rule 1.8(i)(2)]

EXAMPLE
In both the American Consumer Finance example and the patent case example
(above), the lawyers can escape the general rule by using a contingent fee ar-
rangement rather than an assignment of the cause of action or assignment of
one-half ownership of the patent. In both examples, a contingent fee arrange-
ment would be proper.

b. Attorney’s Lien Exception

In some states, an attorney is allowed to secure payment of her fee and repay-
ment of advanced litigation expenses by taking a lien on the proceeds of a
74. PROFESSIONAL RESPONSIBILITY

client’s case. Some states authorize attorney’s liens by statute or case law. In
other states, they must be created by contract between the attorney and the
client. [See generally Pennsylvania Bar Op. 94-35 (1994)] An attorney’s lien gives
the attorney a personal stake in the outcome of the client’s case, but this situa-
tion is tolerated as an exception to the general rule. [ABA Model Rule 1.8(i)(1)]

EXAMPLE
The law of East Carolina permits an attorney to contract with a client for a lien
to secure the attorney’s fee and advanced litigation expenses. Attorney A’s fee
agreement with client C provides that A shall have a lien on whatever C recov-
ers in her case against X to secure payment of A’s fee and to secure repayment
of litigation expenses that A advances on C’s behalf. This provision of A’s fee
agreement is proper.

4. Gifts to Lawyer from Client Who Is Not a Relative

The following rules limit a lawyer’s freedom to solicit or accept a substantial gift from
a client who is not the lawyer’s relative. The same rules apply to a substantial gift
from a client to the lawyer’s relative. In this rule, “relative” includes a spouse, child,
parent, grandparent, grandchild, and other persons with whom the lawyer maintains
a close, familial relationship. [ABA Model Rule 1.8(c)] “Gift” includes a testamentary
gift. [Id.]

a. Soliciting Substantial Gift

A lawyer must not solicit a substantial gift from a client who is not the lawyer’s
relative. However, a lawyer may accept a small gift from a client, such as a token
of appreciation or an appropriate holiday gift. [ABA Model Rule 1.8, comment 6]
Indeed, the rule does not prohibit a lawyer from accepting even a substantial
gift, although the gift may be voidable for undue influence.

EXAMPLE
Lawyer L is a loyal alumnus of the Port Arthur School of Law. The school asked
L to serve as a pro bono legal advisor to a committee that was drafting a new
affirmative action policy for the school. L gladly agreed and worked many hours
on the project for no fee. When the work was done, L told the school’s dean
that his daughter would love to attend the school, but that she could not afford
the high tuition. The dean then arranged for L’s daughter to be admitted on a
full scholarship. L is subject to discipline for soliciting a substantial gift from the
school to his daughter.

b. Preparing Legal Instrument that Creates Substantial Gift

ABA Model Rule 1.8(c) also prohibits a lawyer from preparing a legal instrument
(such as a will or a deed of property) that creates a substantial gift to the lawyer
(or the lawyer’s relative), except when the donor is one of the lawyer’s relatives.
 PROFESSIONAL RESPONSIBILITY 75.

EXAMPLE
Attorney A’s aged father asks her to draft a new will for him. The father tells A
that he wants to set up a testamentary trust that will provide college funds for
A’s children. A may draft the will and related documents, but only because the
client is her father.

c. Lucrative Appointments
ABA Model Rule 1.8(c) does not prohibit a lawyer from seeking to have himself
or his law partner or associate named as executor of an estate or counsel to the
executor or to some other fee-paying position. However, the general conflict
of interest principles expressed in ABA Model Rule 1.7 do prohibit such efforts
if the lawyer’s advice is tainted by the lawyer’s self-interest. [ABA Model Rule
1.8, comment 8] Moreover, lawyers with long experience in probate and estate
planning law know that clients tend to rebel when they discover the lawyer
trying to feather his own nest in this manner.

5. Acquiring Literary or Media Rights Concerning Client’s Case

A lawyer must not acquire literary or media rights to a story based in substantial part
on information relating to the lawyer’s representation of a client. However, a lawyer
may acquire such rights after the client’s legal matter is entirely completed, appeals
and all. [ABA Model Rule 1.8(d)] The reason behind the rule is that the client’s interest
in effective representation may conflict with the lawyer’s interest in maximizing the
value of the literary or media rights. For instance, the lawyer might conduct the client’s
criminal trial in a sensational manner, simply to pump up public interest in the client’s
story. The rule does not apply to literary or media rights that are not substantially
based on information relating to the representation. [ABA Model Rule 1.8, comment 9]

EXAMPLE
Legendary rock star Deep River wrote an autobiography that tells the story of his
rise from a poverty-stricken childhood to life as a beloved musical icon. Attorney A
agreed to represent River in negotiating a book contract and a motion picture con-
tract. In lieu of money, A agreed to do the legal work in return for 5% of the book and
movie royalties. The literary rights rule does not apply to this arrangement because
River’s manuscript is about his life and not about negotiation of the book and movie
contracts. [Id.] However, the arrangement must comply with ABA Model Rule 1.5 (pro-
hibits unreasonably high fee) and ABA Model Rule 1.8(a) (business transactions with
a client).

6. Financial Assistance to Client in Litigation

Except as permitted below, ABA Model Rule 1.8(e) prohibits a lawyer from financially
assisting a client in connection with pending or contemplated litigation. For instance,
the lawyer must not make or guarantee a loan to the client. The prohibition harkens
back to ancient English common law, which forbade lawyers from stirring up litigation
76. PROFESSIONAL RESPONSIBILITY

or supporting it out of their own purse. More to the point, a lawyer who has too great
a financial stake in a case may be unable to give the client objective legal advice.

a. Advancing Litigation Expenses

A lawyer may advance court costs and other litigation expenses on the client’s
behalf, and repayment may be contingent on the outcome of the case. [ABA
Model Rule 1.8(e)(1)]

EXAMPLE
Lawyer L’s fee agreement with personal injury victim V provides that L will ad-
vance the court costs and litigation expenses in V’s suit against the person who
injured him. The agreement also states that if V wins the case, L will be repaid
out of the judgment or settlement proceeds, but that if V loses, L will not be
repaid. The fee agreement is proper.

b. Paying Costs and Expenses for Indigent Client

A lawyer may simply pay the court costs and litigation expenses for an indigent
client, without any provision for repayment. [ABA Model Rule 1.8(e)(2)]

Note: These exceptions apply even if the representation is eligible for fees
under a fee-shifting statute. In other words, the lawyer can advance or pay
litigation expenses as permitted by this rule even if the client’s opponent might
end up being responsible for the client’s fees and costs.

c. Modest Gifts When Representing Indigent Client Pro Bono

A lawyer representing an indigent client pro bono (on their own, or through a
nonprofit organization or a law school clinical or pro bono program) may provide
modest gifts (not loans) to the client for food, rent, transportation, medicine, and
other basic living expenses. However, the lawyer must not: (1) promise or imply
the availability of such gifts prior to retention, or as an inducement to continue
the client-lawyer relationship after retention; (2) seek or accept reimbursement
from the client or anyone affiliated with the client; or (3) publicize or advertise a
willingness to provide such gifts to prospective clients. [RPC 1.8(e)(3)]

d. Other Financial Help Is Prohibited

A lawyer is subject to discipline for giving a client other financial help in the
context of pending or contemplated litigation. [ABA Model Rule 1.8(e)]

EXAMPLE
Chem Corp.’s chemical plant blew up, spreading toxic fumes across pasture
land belonging to dozens of dairy farmers. The grass shriveled, the cows died,
and the farmers became destitute. The law offices of E.Z. Bucks took out news-
paper ads offering to represent the farmers on contingency, to advance the
 PROFESSIONAL RESPONSIBILITY 77.

costs and expenses of litigation, and to lend them money to restore their pas-
tures and dairy herds. The last feature of that offer makes the lawyers subject to
discipline.

7. Aggregate Settlement Agreements

When a lawyer represents several co-parties in a matter (e.g., several plaintiffs or
several defendants), the adversary sometimes makes an “aggregate settlement
offer,” for example, an offer to settle all claims for a lump sum of $1 million. That
creates a potential conflict of interest among the lawyer’s several clients. Some of
them may want to settle for that amount, but others may want to hold out for a better
offer. Moreover, the several clients may disagree about how the lump sum is to be
allocated—who pays how much or who receives how much. Because of the potential
conflict, the lawyer must not participate in the making of an aggregate settlement
agreement unless all of the following conditions are met:

(i) The lawyer must assure that the clients have come to an agreement among
themselves about how the aggregate sum will be shared (who will pay how
much or receive how much);

(ii) The lawyer must disclose to each client all of the terms of the aggregate
settlement, including: (a) the total amount that will be paid or received; (b) the
existence and nature of all the claims, defenses, and pleas involved in the
settlement; (c) the details of every other client’s participation in the settlement,
including how much each will contribute or receive and how each criminal
charge will be resolved; and (d) how the lawyer’s fees and costs will be paid and
by whom. Note: These extensive disclosures may require the lawyer to share
one client’s confidential information with the others, so at the outset of the
matter, the lawyer should get each client’s informed consent to do that; and

(iii) Each client must give informed consent to the aggregate settlement agreement
in a writing signed by the client.

[ABA Model Rule 1.8(g); ABA Op. 06-438]

a. Class Action Settlements

In a class action, the lawyer who represents the class ordinarily does not have
a complete lawyer-client relationship with the unnamed members of the class.
Even so, at settlement time, the class’s lawyer must follow all of the class action
rules concerning notice and other procedural requirements that protect the
unnamed class members. [ABA Model Rule 1.8, comment 16]

b. Aggregate Settlement of Criminal Case

The same rules that apply to an aggregate settlement in a civil case also apply
to a joint plea bargain in a criminal case [ABA Model Rule 1.8(g)], although
78. PROFESSIONAL RESPONSIBILITY

ordinarily one lawyer will not be representing more than one defendant in a
criminal case [see Restatement §129(1)].

8. Compensation from Third Person

A lawyer must not accept compensation from a third person for representing a client,
unless three conditions are met:

a. The client gives informed consent;

b. The third person does not interfere with the lawyer’s independence or the
representation of the client; and

c. The arrangement does not compromise the client’s confidential information.

[ABA Model Rules 1.8(f), 1.7(b), 5.4(c)]

EXAMPLES
1) T, a pimp, seeks to employ attorney A to defend C, who is charged with prostitu-
tion. T demands to be present whenever A talks with C, and T directs C to plead not
guilty, promising to pay the fine if C is found guilty after trial. If A agrees to represent
C under these conditions, A is subject to discipline.
2) Midwest Highway Construction Corp. and its executive vice president C are both
indicted for conspiring with other highway contractors to rig the bids on govern-
ment highway contracts. Midwest seeks to employ lawyer L to serve as C’s separate
defense counsel. Midwest will pay L’s fee, but will not interfere with L’s handling of
the case or with the confidentiality of the relationship between L and C. Under these
conditions, L may agree to represent C.
3) Trimmers and Fitters Union Local #876 established a group legal service program
for the benefit of its members. Using money from union dues, the Local hired the
law firm of R, S, and T to provide the necessary legal services to members. Union
member C asked the firm to represent her in a sexual harassment case against her
fellow worker D, a loyal member of the union. When the president of the Local heard
about C’s case, he called the law firm, demanding to know what C said about D and
demanding that the firm dismiss the case. The law firm must not allow the union or
its officials to interfere with the handling of C’s case.

9. Sexual Relationship Between Lawyer and Client

Because a sexual relationship between a lawyer and client is likely to distort the
lawyer’s professional judgment and endanger confidentiality and the attorney-client
privilege, such a relationship makes the lawyer subject to discipline, whether or not
the client consents and whether or not the client is harmed—unless their consen-
sual sexual relationship predated the lawyer-client relationship. When the client is
an organization, this rule applies to any person who supervises, directs, or regularly
 PROFESSIONAL RESPONSIBILITY 79.

consults with the lawyer concerning the organization's legal matters. [See ABA
Model Rule 1.8(j); ABA Model Rule 1.7, comment 12; ABA Model Rule 1.8, comments
20, 21, and 22]

a. No Imputation
All of the other specific conflicts discussed in 1 - 8., above, are imputed to other
lawyers in the disqualified lawyer’s firm. However, a conflict created by a sexual
relationship is personal in nature and unlike most conflicts, it is not imputed to
the lawyer’s colleagues. [ABA Model Rule 1.8(k)]

b. Pre-Existing Relationship May Still Cause Conflict

Even where the sexual relationship predated the lawyer-client relationship, the
lawyer should stop to consider whether the sexual relationship will “materially
limit” the lawyer-client relationship and implicate the general conflict of interest
rule for current clients (see B., supra). [ABA Model Rule 1.8, comment 21]

D. CONFLICTS INVOLVING FORMER CLIENTS

1. Continuing Duty of Confidentiality
An attorney’s duty to preserve a client’s confidential information does not cease
when the representation ends. The attorney has a continuing obligation to preserve
information gained in confidence during the representation. [ABA Model Rule 1.9(c)]

EXAMPLES
1) When A retired from his solo law practice, he sold his practice to another lawyer.
The purchaser received not only books, furniture, and an office lease but also all of
A’s files relating to past and pending legal matters. Many of the files contained con-
fidential information, and A made no effort to obtain the consent of his clients and
former clients before transferring the files. A is subject to discipline. [See ABA Model
Rules 1.17(c), 1.6, 1.9(c)]
2) Lawyer L, a solo practitioner, left instructions for the winding up of his law practice
in the event of his unexpected death. L directed his personal representative to con-
tact each client to find out whether that client’s files should be delivered directly to
the client, to another lawyer of the client’s choice, or to a young lawyer designated
by L. L’s instructions are proper.

2. Using Confidential Information to Former Client’s Disadvantage

When a lawyer has obtained confidential information from a former client, the lawyer
must not thereafter use the confidential information to the former client’s disadvan-
tage, unless the former client gives informed consent, confirmed in writing. This rule
does not apply to information that has become generally known. Furthermore, it does
not apply to any information that the lawyer would be allowed to reveal or use under
an exception to the general ethical duty of confidentiality. [ABA Model Rule 1.9(c)]
80. PROFESSIONAL RESPONSIBILITY

EXAMPLE
Three years ago, attorney A represented C, the son of a movie star, in a drug pos-
session case. In that connection, C told A in confidence that he had abused drugs
for several years and had become a hard drug addict. Based on information from
other sources, several tabloid newspapers and gossip magazines published stories
about C’s drug problems; within a few weeks, the public knew all there was to know
about C. Now A represents C’s ex-wife in a dispute with C over the custody of their
infant daughter. In the custody dispute, A may use publicly known information about
C’s history of drug abuse.

3. Opposing Former Client in Substantially Related Matter

A lawyer must not represent one client whose interests are materially adverse to
those of a former client in a matter that is “substantially related” to a matter in which
the lawyer represented the former client (unless the former client gives informed
consent, confirmed in writing). [ABA Model Rule 1.9(a)] One purpose of this rule is to
protect confidential information that the lawyer may have received from the former
client, but the rule applies even when the former client cannot demonstrate that the
lawyer received any confidential information.

a. Meaning of “Substantially Related” Matter

Matters are “substantially related” if: (1) they involve the same transaction
or legal dispute, or (2) there otherwise is a substantial risk that confidential
factual information as would normally have been obtained in the prior repre-
sentation would materially advance the new client’s position. Note, however,
that if a lawyer routinely handled a type of problem for a former client, the
lawyer may later oppose that former client in a factually distinct problem of the
same general type. [ABA Model Rule 1.9 and comments 2 and 3]

EXAMPLES
1) Summitville Hospital employed lawyer L to draft a consent form to be signed
by all patients scheduled for elective surgery at the hospital. L drafted the
form and thereafter did no further legal work for the hospital. Three years lat-
er, client C asked L to represent her in a suit against the hospital; in that suit, C
will contend that the consent form violates public policy and is therefore void.
L must not represent C unless the hospital gives informed consent, confirmed
in writing.
2) For many years, lawyer L represented client H in matters relating to H’s busi-
ness and personal finances. Then L and H had a sharp disagreement and came
to a parting of the ways. Later, X asked L to represent her in her divorce from H.
The information that L obtained in confidence about H’s business and personal
finances would materially advance X’s case against H. Thus, L must not repre-
sent X unless H gives informed consent, confirmed in writing.
 PROFESSIONAL RESPONSIBILITY 81.

3) When attorney A was an associate in the M, N, O & P firm, she regularly rep-
resented the Magnum Oil Company in suits to eject service station dealers for
failure to comply with the terms of their service station leases. Two years ago, A
left the firm to enter solo practice. Now S, a Magnum service station dealer, has
asked her to defend him in an ejectment suit brought by Magnum. A may repre-
sent S without getting Magnum’s consent.

4. Clients of Former Firm

A lawyer’s duties may extend not only to the clients she represented personally, but
also to clients of the lawyer’s former firm. A lawyer whose firm formerly represented
a client in a matter and who acquired protected confidential information [Rule 1.6] or
information pertaining to the representation [Rule 1.9(c)] may not thereafter represent
another person in the same or a substantially related matter if that person’s inter-
ests are materially adverse to those of the former client, unless the former client
gives informed consent, confirmed in writing. [ABA Model Rule 1.9(b)]

EXAMPLE
Lawyer L is an associate at Firm One, which represents client A in the case of A v. B.
L works on the A v. B case, and he receives reams of confidential information about
the case from A. L then quits Firm One and becomes an associate at Firm Two.
Absent informed consent from A, confirmed in writing, L may not now represent B in
the A v. B case. Furthermore, L may not represent C in the case of C v. A if the C v.
A case is substantially related to the A v. B case and if the confidential information L
obtained from A is material to the C v. A case.

5. Disqualification of Lawyer’s New Firm

If a lawyer who is disqualified from representing a client under the rules set out in
3. - 4., above, joins a new firm, the new firm may be disqualified as well unless the
lawyer is properly screened (i.e., the disqualified lawyer does not work on the case,
discuss it with those who do, or have access to case files) and does not share fees
from the matter, and the former client is given notice.

EXAMPLE
Same facts as in example in 4., above. A lawyer at Firm Two may not represent B in
the A v. B case or C in the C v. A case, unless L is screened from the case and shares
no fees, and A is given notice.

Note: The prohibition against sharing fees does not prevent the lawyer from
receiving a regular salary or partnership share set by prior independent agreement.
It means only that the lawyer’s compensation must not be “directly related to the
matter in which the lawyer is disqualified.” [See ABA Model Rule 1.10, comment 8]
82. PROFESSIONAL RESPONSIBILITY

a. Notice and Certifications to Former Client

Prompt written notice must be given to any affected former client detailing: (1)
a description of the screening procedures employed, (2) a statement of the
firm’s and the lawyer’s compliance with these requirements, (3) a statement
that review before a tribunal may be available, and (4) an agreement by the
firm to respond promptly to written inquiries or objections by the former client
concerning the screening procedures. The disqualified lawyer and a partner of
the firm must provide the former client with certifications of compliance with the
ABA Model Rules and with the screening procedures at reasonable intervals
upon written request, and upon termination of the screening procedures. [ABA
Model Rule 1.10(a)(2)]

6. Disqualification of Lawyer’s Former Firm

A lawyer’s former firm is prohibited from representing a person with interests materially
adverse to those of a client of the formerly associated lawyer if: (1) the matter is the
same or substantially related to that in which the formerly associated lawyer repre-
sented the client; and (2) a lawyer remaining in the firm has information protected by
Rules 1.6 and 1.9(c) that is material to the matter. [ABA Model Rule 1.10(b)]

EXAMPLE
Lawyer L is a partner at Firm One. L and three associates of Firm One represent client
A in the A v. B case. L and the three associates obtain reams of confidential informa-
tion from A about the case. Then L leaves Firm One to form Firm Two. The three asso-
ciates stay at Firm One. Now L and Firm Two represent client A in the A v. B case.
No lawyer at Firm One may represent B in the A v. B case because the three associ-
ates who obtained confidential information from A are still at Firm One.
No lawyer at Firm One may represent C in the case of C v. A if that case is substan-
tially related to the A v. B case, and if the confidential information the three associ-
ates obtained from A is material to the C v. A case.
If the three associates had also left Firm One, and if no other lawyer in Firm One had
been privy to the confidential information received from A, then any lawyer at Firm
One may represent B in the A v. B case or C in the C v. A case.
The disqualification can be waived if A gives informed consent, confirmed in writing.
Thus, if A consents, the results of the foregoing hypotheticals would be the opposite.

E. CONFLICTS INVOLVING PROSPECTIVE CLIENTS

1. Lawyer’s Duty Concerning Confidential Information
A prospective client is someone who consults with a lawyer about the possibility
of forming a lawyer-client relationship. [ABA Model Rule 1.18(a)] The attorney-client
privilege protects confidential communications between a lawyer and a prospective
 PROFESSIONAL RESPONSIBILITY 83.

client. The ethical duty of confidentiality also applies to information learned during
a consultation between a lawyer and prospective client. Thus, the lawyer must not
reveal or use information learned from a prospective client, unless an exception to
the duty of confidentiality applies.

EXAMPLES
1) Prospective client PC came to lawyer L’s office seeking L’s legal advice about a
plan to murder PC’s sister-in-law without getting caught. The attorney-client privilege
would not protect PC’s communication because he was seeking L’s aid to commit
a future crime. Furthermore, the ethical duty of confidentiality would not prohibit L
from warning the sister-in-law and telling the police if L reasonably believes that PC
really will carry out the plan. [ABA Model Rules 1.18(b), 1.6(b)(1)]
2) Senator S telephoned attorney A, asking A to visit him in the county jail. When A
arrived, S explained in confidence that he was picked up for felony drunk driving,
that he was very drunk at the time, and that he wanted A to represent him. A was
overburdened with other work and could not do so. Several weeks later, the entire
story of Senator S’s drunken escapade became common knowledge after S talked
about it on a popular television show. Not long afterward, in an unrelated matter, A
had occasion to cross-examine S, who had testified on behalf of A’s adversary. A
asked S: “Sir, shortly before witnessing the events about which you testified on direct,
had you drunk any alcohol?” S was outraged and accused A of violating the duty
of confidence owed to a potential client. A’s conduct was proper. The question on
cross-examination was designed to test S’s ability to perceive correctly. Furthermore,
the information about S’s drinking, although originally confidential, lost its protection
when S himself made it public on television. [See ABA Model Rules 1.18(b), 1.9(c)(1)]

2. Lawyer’s Duty Concerning Conflict of Interest

Subject to the exceptions stated in 3., below, a lawyer who obtains confidential
information during a consultation with a prospective client must not later represent a
different person in the same or a substantially related matter if the confidential infor-
mation could significantly harm the prospective client. [ABA Model Rule 1.18(c)] This
conflict is imputed to others in the lawyer’s firm, but the imputation can be overcome
by screening, as stated in 3., below.

3. How to Overcome a Prospective Client Conflict

One way to overcome the conflict described in 2., above, is to obtain informed
consent, confirmed in writing, from both the affected client and the prospective
client. [ABA Model Rule 1.18(d)(1)] A second way to overcome the conflict is to satisfy
all of the following conditions:

a. Demonstrate that the lawyer who held discussions with the prospective client
took care to avoid exposure to any more confidential information than was
necessary to determine whether to represent the prospective client;
84. PROFESSIONAL RESPONSIBILITY

b. Demonstrate that the disqualified lawyer is timely screened from any participa-
tion in the matter and will not share the fee (but he may take his ordinary salary
or partnership share); and

c. Give written notice to the prospective client.

[ABA Model Rule 1.18(d)(2)]

F. CONFLICT RULES FOR CURRENT AND FORMER GOVERNMENT OFFICERS

AND EMPLOYEES
When a lawyer serves as an officer or employee of the government for a period and
then leaves to enter private law practice, the government has a right to expect that its
confidential information will not be abused. Furthermore, private clients should not be
allowed to gain an unfair advantage from information known to a lawyer only because
of prior government service, and lawyers should not be in a position to benefit private
clients because of prior government service. Finally, possible future benefit to private
clients should not distort a lawyer’s professional judgment while working for the govern-
ment. [See ABA Model Rule 1.11, comments 3 and 4] All of the foregoing would suggest
that there should be a broad, rigid rule of disqualification for lawyers who move from the
government to private practice. However, such a rule would have a serious drawback—
the government would be hindered in recruiting good lawyers for short-term government
service. Thus, the ABA Model Rules establish disqualification rules that are relatively
narrow and flexible. [See also Restatement §133]

1. Federal and State Conflict of Interest Laws

Lawyers who move between government and private jobs must comply not only with
the ethics rules but also with various state and federal statutes and regulations. [See,
e.g., Federal Ethics in Government Act, 18 U.S.C. §§207 - 208] Those are not covered
in this outline, but they must be considered in solving an actual problem of succes-
sive government and private employment.

2. Private Work Following Government Work on Same Matter

Except when expressly permitted by law, a lawyer who leaves government service
and enters private practice must not represent a private client in a matter in which
the lawyer participated personally and substantially while in government service,
unless the government agency gives informed consent, confirmed in writing. [ABA
Model Rule 1.11(a)]

a. Meaning of the Term “Matter”

As used in this rule, “matter” has a narrow, technical meaning. It does not
mean “general topic” or “broad subject area.” It means a specific set of facts
involving some specific parties. [ABA Formal Op. 342 (1975)] ABA Model
Rule 1.11(e) defines it more fully as, “any judicial or other proceeding, applica-
tion, request for a ruling or other determination, contract, claim, controversy,
 PROFESSIONAL RESPONSIBILITY 85.

investigation, charge, accusation, arrest, or other particular matter involving a

specific party or parties” (plus anything else that is covered under the conflict of
interest rules of the government agency in question).

EXAMPLES
1) When lawyer L worked for the State Consumer Protection Agency, she was
assigned to draft some regulations to govern the conduct of door-to-door
salespeople. The regulations that she drafted were ultimately adopted, almost
verbatim, by the agency. A year later, L left government service and entered
private practice. She was asked to represent American Encyclopedia Company
(a door-to-door sales company) in a dispute with the State Consumer Protec-
tion Agency. The essence of the dispute is the proper application of the regu-
lations that L herself drafted. L may represent American because the drafting
of regulations is not a “matter”; it does not involve specific facts and specific
parties.
2) When serving as Oakville City Attorney, lawyer L drafted a city ordinance for
the rezoning of a particular tract of land owned by developer R. The drafting of
the ordinance is a “matter” because it involved one narrow, specific situation.
Thus, when L later enters private law practice, she may not work on a case that
involves that ordinance. [See Restatement §133]

b. Meaning of “Personally and Substantially”

The term “personally and substantially” means just what it says—the disqualifi-
cation rule applies only when the lawyer’s work on a matter was both personal
and substantial. The term does not include work that is trifling, and it does not
include mere supervisory responsibility. [See ABA Formal Op. 342 (1975)]

EXAMPLE
Attorney A is the District Attorney of Colma County. She is in charge of 16 depu-
ties working out of five different offices spread through the county. A’s rubber-
stamped signature appears on every paper that goes out of the five offices. In
theory, she is personally responsible for every detail of every case; in fact, most
of A’s day is consumed in supervision and administration. The disqualification
rule would cover only the few, exceptional cases in which A does become per-
sonally and substantially involved. [Id.]

c. Imputed Disqualification
If a lawyer is disqualified by the rule stated above, then everyone in that
lawyer’s firm is also disqualified unless the lawyer is timely screened from the
case, the lawyer does not share fees from the matter, and written notice is
promptly given to the governmental agency to enable it to make sure that the
above conditions are being met.
86. PROFESSIONAL RESPONSIBILITY

EXAMPLE
When lawyer L worked for the State Environmental Safety Bureau, he par-
ticipated personally and substantially in an investigation of Noxatox Corp.
concerning the dumping of radioactive industrial waste in Evergreen Slough.
Later, L quit the Bureau and became a partner in the T, S & U firm. One of L’s
law partners is now asked to defend Noxatox in private litigation arising out
of the Evergreen Slough matter. L will not work on the case, will have no ac-
cess to the case files, and will not discuss the case with others in the office. L
will receive his ordinary share of the proceeds of the partnership, set by prior
independent agreement. Finally, the Bureau will be promptly informed of the
foregoing facts in writing. Under these conditions, the partner may represent
Noxatox.

3. Subsequent Use of Information Gained During Government Service

ABA Model Rule 1.11(c) provides that (except when expressly permitted by law) a
government lawyer who receives confidential government information about a
person must not later represent a private client whose interests are adverse to
that person, when the information could be used to the material disadvantage of
that person. The rule covers only information actually received by the government
lawyer, not information that could be fictionally imputed to the lawyer. “Confidential
government information” means information that is gained under government
authority and which the government is prohibited from revealing, or has a privilege
not to reveal, and which is not otherwise available to the public. [ABA Model Rule
1.11(c) and comment 8]

EXAMPLE
When attorney A worked on the legal staff of the State Parole Board, he received
confidential information about the personal life, character, and criminal proclivities of
X, a parolee. Later, A entered private practice as a criminal defense lawyer. He was
assigned to defend D in a case in which it appeared quite likely that X, not D, was
the perpetrator. The proper defense of D would require a thorough investigation
of the very facts that A learned about X in confidence. A must request the court to
relieve him of the assignment to defend D.

a. Imputed Disqualification
If a former government lawyer is disqualified by this rule, then everyone in that
lawyer’s firm is also disqualified unless:

1) The lawyer is timely screened from the matter; and

2) The lawyer is not apportioned any part of the fee earned in the matter.

[ABA Model Rule 1.11(c)]

 PROFESSIONAL RESPONSIBILITY 87.

EXAMPLE
In the State Parole Board example above, attorney A’s law partner P may de-
fend D if A is screened from the case and is not apportioned any part of the fee
earned in the case.

4. Current Government Service After Private Practice

ABA Model Rule 1.11(d) states the rules that apply to a person who becomes a govern-
ment officer or employee after private practice or other nongovernmental work.

a. Ordinary Conflict Rules Apply

The ordinary conflict rules stated in ABA Model Rules 1.7 (current clients) and 1.9
(former clients) apply to a lawyer who enters government service after private
practice or other nongovernmental work. [ABA Model Rule 1.11(d)(1)]

EXAMPLE
For the past five years, lawyer L worked for the M & N law firm. In that job, L
worked on a few matters for Cosmoplex, a diversified communications com-
pany, and he gained considerable confidential information about the company’s
finances. Now, L has quit M & N and has gone to work for the United States
Department of Labor, which is about to sue Cosmoplex for fraud in connection
with the purchase of overvalued company stock for its employee pension plan.
ABA Model Rule 1.9 prohibits L from working on that suit (unless Cosmoplex
gives informed consent, confirmed in writing). However, if L is timely screened
from the suit, other labor department lawyers may work on it—L’s conflict will not
be imputed to them.

b. “Personal and Substantial” Rule Also Applies

If a lawyer worked “personally and substantially” on a “matter” in private
practice or other nongovernmental employment, the lawyer must not work on
that same matter when she later enters government service, whether or not
the later work would be adverse to a former client. However, informed consent,
confirmed in writing, can solve the conflict.

EXAMPLE
In private practice, attorney A represented Electro Corp. in trying to obtain
a license from the State Energy Commission to build a geothermal electric
generating plant. While Electro’s application was still pending, A quit private
practice to become a lawyer for the Commission. A must not work on the
Electro application unless she obtains the informed consent, confirmed in writ-
ing, from both the Commission [ABA Model Rule 1.11(d)(2)(i)] and Electro [ABA
Model Rule 1.9(a)].
88. PROFESSIONAL RESPONSIBILITY

c. Negotiating for Private Employment

When a person in government service is currently working personally and
substantially on a matter, she must not negotiate for private employment with
any party or lawyer who is involved in that matter. There is a special exception
for judges’ and adjudicative officers’ law clerks who are seeking work after their
clerkships end (see G.3., infra). [ABA Model Rule 1.11(d)(2)(ii)]

EXAMPLE
Lawyer L currently serves on the State Agriculture and Fisheries Commission.
L’s work for the Commission is strictly nonlegal; he does not function as a law-
yer for the Commission. Currently, L and the other Commissioners are working
personally and substantially on a matter involving the Shady Bay Salmon Farm.
Now, Shady Bay approaches L, asking if he would like to become Shady Bay’s
in-house general counsel. If L negotiates for employment with Shady Bay, he
will be subject to discipline. Notice that the rule applies to L, even though his
work for the Commission is nonlegal.

G. CONFLICTS INVOLVING FORMER JUDGES, ARBITRATORS, AND THE LIKE

The conflict of interest problems posed when a lawyer switches between government
and private practice are also present when a judge leaves the bench and enters private
practice. Thus, the rules discussed here are similar to those discussed above.

1. Switching from Judicial Service to Private Law Practice

A lawyer must not represent a private client in a matter in which the lawyer has
earlier participated personally and substantially while serving as a judge or other
adjudicative officer (e.g., a referee or special master) or as a law clerk to such person,
or as an arbitrator, mediator, or other third-party neutral, unless all parties to the
proceedings give informed consent, confirmed in writing. [ABA Model Rule 1.12(a)]
However, an arbitrator who is selected as a partisan of a party in a multi-member
arbitration panel may subsequently represent that party. [ABA Model Rule 1.12(d)]

EXAMPLES
1) Lawyer L was selected as the partisan of union U on a three-member arbitration
panel. L may serve as U’s lawyer in later proceedings relating to the dispute that was
arbitrated.
2) Law clerk C worked on the case of P v. D and made recommendations to Judge
J about some discovery motions and a motion for default judgment. When C com-
pletes her clerkship and enters private practice, she cannot work on the case of P v.
D. [See Maryland State Bar Op. 85-23 (1985)]
3) J was one of 15 judges on the County Superior Court (a trial court) while the case
of State v. Able was pending in that court. However, the Able case was assigned to
 PROFESSIONAL RESPONSIBILITY 89.

a different judge, and Judge J never had anything to do with it. Later, Judge J re-
signed from the bench and entered private practice. Able asked J to represent her
on the appeal of her case. J may represent Able because J did not personally work
on the Able case. [See ABA Model Rule 1.12(a)]
4) S was the Senior Presiding Judge of the Circuit Court of Appeal (an intermediate
appellate court). In that capacity, Judge S was responsible for all court administration
and for assigning judges to hear various cases. During that period, the case of Com-
monwealth v. Beale was heard and decided by the court, but Judge S had nothing
to do with that case except to assign it to three other judges. Later, Judge S left the
bench and entered private practice. S may represent Beale in a subsequent stage of
Beale’s case. [Id.]

2. Screening Can Avoid Imputed Disqualification

If a lawyer is disqualified under Rule 1.12(a), everyone else in the lawyer’s firm is also
disqualified unless the following conditions are met:

a. The lawyer is timely screened from the matter;

b. The lawyer is not apportioned any part of the fee earned in the matter; and

c. Written notice is given to the parties and the appropriate tribunal so that they
can ensure that the foregoing conditions are met.

[ABA Model Rule 1.12(c); ABA Formal Op. 342 (1975)]

3. Law Clerks Negotiating for Private Employment

A law clerk to a judge or other adjudicative officer must notify that judge/officer
before negotiating for private employment with a party (or the attorney for a party)
in a matter in which the law clerk is participating personally and substantially. [ABA
Model Rule 1.12(b)] Law clerks are specially treated because they are usually newly
admitted lawyers for whom a clerkship is only a temporary first step in a legal career.

EXAMPLE
After graduating from law school, S became a law clerk for Judge J. In that capacity,
S wrote the bench brief and drafted an opinion in the case of Arner v. Bosch. While
that case was still pending before the court, the attorney for Bosch invited S to visit
her law firm and interview for a job. S must notify Judge J before discussing future
employment with the attorney.

4. Other Adjudicative Officers Negotiating for Private Employment

The lenient rule that applies to law clerks does not apply to judges, arbitrators,
mediators, third-party neutrals, and other adjudicative officers. They are forbidden to
negotiate for private employment with a party (or the attorney for a party) in a matter
in which they are participating personally and substantially. [ABA Model Rule 1.12(b)]
90. PROFESSIONAL RESPONSIBILITY

V. COMPETENCE, MALPRACTICE, AND CIVIL LIABILITY

A. COMPETENCE
When representing a client, a lawyer must act competently, i.e., with the legal knowledge,
skill, thoroughness, and preparation reasonably necessary for the representation. [ABA
Model Rule 1.1]

1. Legal Knowledge and Skill

a. Factors in Determining Requisite Skill

In deciding whether a lawyer has the knowledge and skill required to handle a
particular matter, the following factors should be considered:

1) The complexity and specialized nature of the matter;

2) The lawyer’s general experience;

3) The lawyer’s training and experience in the field in question;

4) The preparation and study the lawyer is able to give the matter; and

5) Whether it is feasible to refer the matter to, or associate or consult with, a

lawyer of established competence in the field.

[ABA Model Rule 1.1, comment 1] Note that most matters do not require special-
ized skill and that every lawyer is capable of competence either through neces-
sary study or association of another lawyer. Thus, a lack of legal knowledge or
skill really means a failure to seek it. [Hazard & Hodes, §4.02]

b. Becoming Competent Through Preparation

It follows from the above that a lawyer may accept representation despite lacking
competence in the field involved if the requisite competence can be achieved by
reasonable preparation. This often comes into play when a lawyer is appointed as
counsel for an unrepresented person. [ABA Model Rule 1.1, comment 4]

c. Emergency Situations
In an emergency, a lawyer may assist a client, even if the lawyer does not have
the skill ordinarily required in the field in question, if referral to or consultation
with another lawyer would be impractical. However, the assistance should not
exceed what is reasonably necessary to meet the emergency. [ABA Model
Rule 1.1, comment 3]

EXAMPLE
In the middle of the night, attorney A’s neighbor calls him and asks what to do
about her estranged husband who is drunkenly trying to get into her house, in
 PROFESSIONAL RESPONSIBILITY 91.

violation of a court order. The neighbor’s regular lawyer is unavailable, and A

knows little or nothing about family law. In this emergency situation, A may ad-
vise the neighbor, but his advice should be limited to the emergency at hand.

2. Thoroughness and Preparation

To handle a matter competently, a lawyer must inquire into and analyze the facts
and legal elements of the problem, applying the methods and procedures used by
competent practitioners. Competence, of course, requires adequate preparation.
[ABA Model Rule 1.1, comment 5]

3. Retaining Other Lawyers to Assist in the Matter

Sometimes a lawyer may gain competence in a matter by consulting with other
lawyers. Before a lawyer retains or contracts with lawyers outside her firm to assist in
the provision of legal services to the client, the lawyer: (1) must reasonably believe that
the services of the outside lawyers will contribute to the competent and ethical repre-
sentation of the client, and (2) “should ordinarily” obtain the client’s informed consent.
The reasonableness of the lawyer’s decision to retain lawyers outside her firm will
depend on factors such as the background of the nonfirm lawyers, the nature of the
services assigned to the nonfirm lawyers, and the professional conduct rules in the
jurisdictions in which the services will be performed. [ABA Model Rule 1.1, comment 6]

4. Maintaining Competence—Technology and Continuing Legal Education

Lawyers should keep abreast of changes in the law and its practice. As such, a
lawyer should take steps to understand the benefits and risks associated with
relevant technology. The lawyer also should engage in continuing legal educa-
tion programs sponsored by the organized bar and must comply with all applicable
continuing legal education requirements. [ABA Model Rule 1.1, comment 8]

B. DILIGENCE
A lawyer must act with reasonable diligence and promptness in representing a client.
[ABA Model Rule 1.3]

1. Diligence Defined
A lawyer should pursue a matter on the client’s behalf despite opposition, obstacles,
and personal inconvenience, and may take whatever lawful and ethical measures are
required to vindicate the client’s cause. The lawyer should act with dedication and
commitment to the client’s interests and with zeal in advocacy on the client’s behalf.
[ABA Model Rule 1.3, comment 1]

a. Diligence Does Not Require Incivility

A lawyer should use good judgment in determining the means by which a
matter is pursued, and the lawyer is not bound by Rule 1.3 to press every
conceivable advantage. Moreover, the duty of diligence does not require the
lawyer to be offensive or uncivil toward the adversary or other persons. [Id.]
92. PROFESSIONAL RESPONSIBILITY

b. Workload
A lawyer must control his workload so that each matter can be adequately
handled. [ABA Model Rule 1.3, comment 2]

2. Promptness
Procrastination is perhaps the professional shortcoming most widely resented.
Procrastination often has severe or devastating consequences to the client’s inter-
ests, as when a court-ordered deadline is missed or the statute of limitations is
permitted to run. Even when procrastination does not harm the client’s substantive
interests, it can cause the client needless anxiety and can undermine confidence
in the lawyer’s trustworthiness. A lawyer may, of course, agree to a reasonable
postponement if it will not prejudice her client. [ABA Model Rule 1.3, comment 3]

3. Completion of the Matter

Once a lawyer agrees to handle a matter for a client, the lawyer must see the
matter through to completion (unless, of course, the lawyer is fired or is required or
permitted to withdraw). If there is doubt about whether the lawyer-client relationship
has come to an end, the lawyer should clarify it, preferably in writing. [ABA Model
Rule 1.3, comment 4]

EXAMPLES
1) Over the past 15 years, attorney A has served as trademark counsel for Webb
Corp., but in recent months the relationship has become somewhat strained. A is
uncertain whether Webb Corp. wishes to continue to use her services. Today A read
in a trademark newsletter that one of Webb’s competitors is attempting to register
a trademark that will seriously interfere with Webb’s business. A should promptly
call the matter to Webb’s attention and ask Webb whether it wishes her to act on its
behalf in this matter.
2) Client C hired lawyer L to defend her in a drunk driving case. At trial, C was con-
victed, and her driver’s license was suspended. L is uncertain whether C expects
him to do anything about an appeal. L must consult with C about the possibility of an
appeal before relinquishing responsibility for the matter.

4. Existence of Lawyer-Client Relationship

A lawyer’s obligation under the duties stated above, as with most of the lawyer’s
ethical duties, depends on whether there is a lawyer-client relationship. If there is
any doubt, however, as to whether the lawyer-client relationship was either formed
or terminated, the lawyer must either take affirmative steps to terminate the relation-
ship or act with the required diligence. [Hazard & Hodes, §2.05]

5. Solo Practitioner’s Duty to Plan for Death or Disability

The untimely death or disability of a solo practitioner can create havoc for her
clients. To prevent that, every solo practitioner should designate another competent
 PROFESSIONAL RESPONSIBILITY 93.

lawyer who, upon the death or disability of the solo practitioner, would review the
clients’ files, notify the clients of the circumstances, and determine whether protec-
tive action is needed. [ABA Model Rule 1.3, comment 5]

C. SINGLE VIOLATION SUFFICIENT TO IMPOSE DISCIPLINE

Neither Rule 1.1 (competence) nor Rule 1.3 (diligence) requires a pattern of misconduct;
a single incident is sufficient to impose professional discipline. Special circumstances
should be considered when imposing the sanction, but not when determining whether
there has been a violation. Even when the lawyer is in the midst of a personal crisis, he
must take reasonable steps to put his cases on temporary hold, until he can give them
his full attention. [Hazard & Hodes, §7.06, illus. 7.10]

EXAMPLE
Client Cathy came to lawyer Larry with a medical malpractice claim, the statute of limita-
tions on which was due to run out within the week. Larry agreed to take the case and be-
gan drafting the complaint. Two days later, Larry’s son was hit by a car. For several days,
during which time the doctors performed several surgeries, they did not know whether
the child would live or die. Larry did not leave his son’s side during this critical time, and
thus did not file Cathy’s case within the statutory period. Cathy filed both a malpractice
case and a disciplinary complaint against Larry. Larry is subject to discipline for lack
of diligence in handling Cathy’s case. The disciplinary authority will likely consider the
circumstances in assessing a sanction, but they are irrelevant to the question of whether
Larry breached his duty to Cathy. [See Hazard & Hodes, §7.06, illus. 7.10]

D. MALPRACTICE AND OTHER CIVIL LIABILITY

1. Relationship Between Disciplinary Matters and Malpractice Actions
Professional discipline is only one of the possible consequences of incompetent
or neglected legal work. Another possible consequence is civil liability for legal
malpractice. A malpractice action differs from a disciplinary matter in three ways: (1)
in a malpractice action, the forum is a civil court, not a disciplinary tribunal; (2) in a
malpractice action, the attorney’s adversary is an injured plaintiff, not the state bar;
and (3) the purpose of a malpractice action is to compensate the injured plaintiff, not
to punish the attorney, and not to protect the public from future wrongs.

2. Ethics Violation as Evidence of Legal Malpractice

If a lawyer violates a legal ethics rule, does that automatically mean that she has
also committed legal malpractice? If not, does it create a presumption that she has
committed malpractice? The “Scope” section of the ABA Model Rules answers “no”
to both questions: the legal ethics rules are for disciplinary purposes. They are not
designed to be a basis for civil liability, and a lawyer’s breach of an ethics rule does
not automatically or presumptively mean that the lawyer has committed malpractice.
Courts do, however, regard an ethics violation as relevant evidence that the lawyer’s
94. PROFESSIONAL RESPONSIBILITY

conduct was below the appropriate standard of care. [See Fishman v. Brooks, 487
N.E.2d 1377 (Mass. 1986); and see generally Hazard & Hodes, §5.01]

3. Theories of Malpractice Liability

The plaintiff in a legal malpractice case can invoke a variety of legal theories. The
choice of theories can be important because of differences in the statutes of limita-
tion and measures of damages.

a. Intentional Tort
One theory is intentional tort. An attorney is liable (just as any nonprofessional
would be) for fraud, misrepresentation, malicious prosecution, abuse of process,
or misuse of funds.

b. Breach of Fiduciary Duties

A second theory is breach of fiduciary duties. An attorney acting as a fiduciary
for the client owes the client all of the customary duties of a fiduciary, including
loyalty, confidentiality, and honest dealing.

c. Breach of Contract
A third theory is breach of contract. For instance, an attorney may have
breached a term of an express oral agreement with the client. If there is no
express contract, a court may be willing to find an implied promise by the
attorney to use ordinary skill and care to protect the client’s interests.

d. Negligence
A fourth theory, by far the most common, is unintentional tort—i.e., simple
negligence. [See generally Restatement §§48 - 54] Using this theory, the plain-
tiff must establish the routine elements of any negligence case: a duty of due
care, a breach of that duty, legal causation, and damages. These elements are
discussed separately in the paragraphs that follow.

1) Duty of Due Care

a) To Clients
An attorney owes a duty of due care to a client, but it is not always
clear when a person becomes a client. [Id. §50] Courts are quick to find
that an attorney-client relationship has been established if the attor-
ney’s neglect has misled the alleged client. [See Restatement §14]

EXAMPLE
C asked attorney A to represent him as plaintiff in a products liability
case. A said she would have to check with her partners to make sure
the case posed no conflict of interest, and A said that she would “get
back to C one way or the other.” A never checked with her partners,
 PROFESSIONAL RESPONSIBILITY 95.

and she totally forgot C’s case. The statute of limitations ran. A court
could conclude that an attorney-client relationship had been estab-
lished between A and C.

b) To Prospective Clients and Third Parties

If an attorney provides legal services during a consultation with
a prospective client, the attorney must use reasonable care. [See
Restatement §§51, 15] An attorney also owes a duty of due care to
other nonclients in certain circumstances, including where: (1) the third
party was intended to benefit by the attorney’s rendition of legal
services, or (2) the attorney invited the third person to rely on her
opinion or legal services. [See Restatement §51]

EXAMPLES
1) C hired attorney A to draft a trust agreement naming B as benefi-
ciary. A drafted the trust agreement negligently, making it subject to an
unnecessary tax; the tax reduced the amount that B could receive from
the trust. Because B was intended to benefit from A’s services, and
because the potential for harm to B should have been obvious, B has a
good malpractice claim against A.
2) M hired lawyer L to bring a civil suit against D. As it turned out, M’s
claim against D had no sound factual basis, and L would have recog-
nized that from the outset had L not been negligent. D incurred trouble
and expense in defending the suit. D has no negligence claim against
L because D was not intended to benefit from L’s services and D was
not any other type of protected nonclient.
3) X hired lawyer L to negotiate the sale of personal property to Y. The
sales contract required L to give Y an opinion letter confirming the
absence of liens on the property. After X assured L that there were no
liens on the property, L decided not to conduct a search of the lien re-
cords. L transmitted the opinion letter to Y and the sale closed. Y later
discovered that there was a lien on the property. Y has a malpractice
claim against L because L invited Y to rely on the opinion letter.

c) Standard of Care
The standard of care for an attorney is the competence and diligence
normally exercised by attorneys in similar circumstances. If an attorney
represents to a client that he has greater competence (e.g., is a
specialist) or will exercise greater diligence than that normally demon-
strated by attorneys undertaking similar matters, he is held to that
higher standard. [Restatement §52 and comment d]
96. PROFESSIONAL RESPONSIBILITY

2) Breach of Duty of Due Care

a) Errors of Judgment
An attorney is liable for negligence, but not everything that causes
harm is negligence. An attorney is not liable for “mere errors in
judgment” if the judgment was well-informed and reasonably made.

EXAMPLES
1) Attorney A decided not to take the pretrial deposition of witness
X. A’s motive was to save litigation expenses for her client; further, it
appeared that X’s testimony would be peripheral and unimportant. At
trial, X turned out to be a critical witness for the adversary. Even if A’s
failure to take X’s deposition caused A’s client to lose the case, A has
not committed malpractice if her judgment was well-informed and rea-
sonably exercised.
2) In a surgical malpractice case, lawyer L failed to interview the oper-
ating room nurse, an obvious witness who might have knowledge of
key facts. L’s client lost the case because of the failure to prove a fact
that the nurse’s testimony could have supplied. When the client sued L
for legal malpractice, L responded that he had made a “tactical judg-
ment” not to interview the nurse. Holding L liable, the court noted that
“there is nothing tactical about ignorance.”

b) Knowledge of Law
An attorney is expected to know the ordinary, settled rules of law
known to practitioners of ordinary competence and diligence.
Furthermore, an attorney has a duty to go to the library to look
up rules of law that he does not know. If the answer is there to be
found through standard research techniques and sources, and if the
attorney does not find it, he has breached the duty of due care. [See,
e.g., Aloy v. Mash, 38 Cal. 3d 413 (1985)] Obviously, some issues of
law are unsettled and debatable; if the attorney has done reasonable
legal research, then he has fulfilled the duty of due care—even if he
makes the wrong guess about how an unsettled issue will ultimately
be resolved by the courts.

c) Calling in a Specialist
Some legal problems are uniquely within the competence of a legal
specialist. It is a breach of the duty of due care for a general practi-
tioner to attempt to handle such a problem if a reasonably prudent
lawyer would have sent the client to a specialist.
 PROFESSIONAL RESPONSIBILITY 97.

EXAMPLE
Client C asked attorney A to help him obtain legal protection for a new
manufacturing process that C had invented. A realized that he was
totally ignorant about the law of patents and trade secrets, but he nev-
ertheless tried to advise C. As a result, C lost his opportunity to apply
for a United States patent on his invention. A breached the duty of due
care by failing to send C to a patent attorney.

3) Legal Causation
As in any tort case, the plaintiff in a professional negligence case must
prove that the defendant’s conduct was the legal cause of the plaintiff’s
injury. That is, the injury would not have happened but for the defendant’s
negligence, and furthermore, that it is fair to hold the defendant liable for
unexpected injuries or for expected injuries that happen in unexpected
ways. [See Restatement §53]

EXAMPLES
1) P hired lawyer L to represent her in a suit against the federal government.
L neglected P’s case, and the statute of limitations ran. P then sued L for le-
gal malpractice. In the malpractice case, P must prove that she had a good
claim against the federal government. If P did not have a good claim in the
first place, then L’s negligence was not the legal cause of injury to P.
2) History professor H hired attorney A to defend her in a plagiarism case.
H lost the case because of A’s failure to prepare adequately. The loss broke
H’s mind and spirit; she became a hopeless alcoholic and was fired from
her university position. If H files a legal malpractice suit against A, a court
would probably conclude that H’s loss of earning power was not legally
caused by A’s negligence.

4) Damages
The plaintiff in a professional negligence case must prove damages—e.g.,
the money paid out to discharge an adverse judgment, or the value of a
lost cause of action. The plaintiff can recover for direct losses and also for
losses that are indirect but foreseeable. [Id. §53]

EXAMPLE
Attorney A did the legal work for the acquiring corporation in a large merger
transaction. A bungled the merger agreement; in consequence, the merger
fell through, and A’s client suffered large legal expenses in defending against
suits brought by aggrieved shareholders. In a malpractice action, A’s client
can recover both the legal expenses and the profits lost due to the aborted
merger, provided that it can prove its losses with reasonable certainty.
98. PROFESSIONAL RESPONSIBILITY

4. Civil Liability Other than Malpractice

In addition to malpractice liability, a lawyer may be liable to a client on other grounds,
including breach of contract (e.g., by failing to comply with the fee agreement). A
lawyer also may be liable to the client for breach of warranty if the lawyer promises a
specific result, knowing that the result has material importance to the client. However,
general predictions of success in the case will not result in liability because such
results are clearly dependent on circumstances outside of the lawyer’s control.
[Restatement §55]

EXAMPLE
D is on trial for burglary and is represented by lawyer L. After closing arguments, L
tells D, “The prosecution didn’t prove a thing. I’m pretty sure you’re going home with
your family tonight.” The jury convicts D and he is sentenced to prison. L is not liable
for breach of warranty.

5. Liability for Negligence of Others

The ordinary principles of respondeat superior apply in suits for professional
negligence. Thus, an attorney can be held liable for injuries caused by a negligent
legal secretary, law clerk, paralegal, or employee associate when acting within
the scope of employment. Furthermore, under general principles of partnership
law, each partner in a general partnership is jointly and severally liable for the
negligence of another partner committed in the ordinary course of the partnership
business (i.e., any partner may be held personally liable for the entire judgment
even if they had nothing to do with the negligent act). However, many law firms
are set up as limited liability partnerships, limited liability companies, or similar
entities. The law varies widely from state to state, but usually a partner of a limited
liability entity will be shielded from personal liability for the misconduct of others
in the firm.

6. Malpractice Insurance
Because legal malpractice actions have become commonplace, prudent lawyers
carry ample malpractice insurance. A small number of states require lawyers to have
malpractice insurance, but a growing number of states require lawyers to disclose
their insured or uninsured status to the state bar, or, in a few states, directly to poten-
tial clients. [See ABA Journal 63 (May 2006)]

7. Settling Malpractice Claims

The law favors the amicable settlement of claims. Thus, a lawyer may settle a
malpractice claim or potential claim made by an unrepresented client or a former
client, but only if the lawyer first advises the client in writing to seek the advice of an
independent lawyer about the settlement, and the lawyer gives the client a reason-
able chance to obtain such advice. [ABA Model Rule 1.8(h)(2)]
 PROFESSIONAL RESPONSIBILITY 99.

EXAMPLE
Defendant D hired attorney A to defend him in a criminal case, and D gave A $5,000
as an advance against attorneys’ fees yet to be earned. Shortly before trial, D be-
came dissatisfied with A’s work, fired her, and threatened to sue her for malpractice.
A returned the unearned portion of the fee advance to D by a check that had an en-
dorsement on the back purporting to release A from all liability for malpractice. A did
not advise D to seek advice from an independent lawyer. A is subject to discipline.
[See, e.g., New York State Bar Op. 591 (1988)]

8. Prospective Waiver or Limit of Malpractice Liability

A lawyer must not make an agreement with a client that prospectively waives or
limits the lawyer’s liability for legal malpractice, except in the unlikely event that
the client is independently represented in making the agreement. [ABA Model Rule
1.8(h)(1)] Note that unlike with settlements (above), the client must actually be repre-
sented by independent counsel; advising the client to seek representation is not
sufficient.

EXAMPLE
Lawyer L requires his clients to sign a standard, preprinted retainer agreement that
provides, in part, that the client cannot sue L for malpractice. L’s clients are not inde-
pendently represented in signing his retainer agreement. L is subject to discipline.

a. May Practice in a Limited Liability Entity

A lawyer may practice in a limited liability entity, provided that the lawyer
remains personally liable to the client for her own malpractice, and the entity
complies with legal requirements for notice, insurance coverage, and the like.
[ABA Model Rule 1.8, comment 17]

b. May Reasonably Limit Scope of Representation

A lawyer may enter into an agreement with his client that reasonably limits the
scope of the lawyer’s representation in accordance with ABA Model Rule 1.2.
[Id.]

EXAMPLE
Client C is thinking of purchasing the worldwide distribution rights to a strain
of pest-resistant rice. C asks lawyer L to find out whether any nation imposes
trade restrictions on that kind of rice. L tells C that to research the laws of every
nation could take as much as 300 hours and cost $60,000, but C said he could
not afford that much enlightenment. C and L agreed that L would research as
many nations as he could in 100 hours, starting with C’s most likely markets. The
agreement is proper.
100. PROFESSIONAL RESPONSIBILITY

c. May Arbitrate Legal Malpractice Claims

A lawyer may agree prospectively with a client to arbitrate all legal malpractice
claims, provided that such an agreement is proper under local law and the client
understands the scope and effect of the agreement. [Id.]

9. Reimbursement of Client
A lawyer who has breached a duty to his client with monetary effect cannot escape
discipline by reimbursing the client for any loss. Thus, even if the lawyer pays the
client back for any damage he caused, he is still subject to discipline.

VI. LITIGATION AND OTHER FORMS OF ADVOCACY

A. MERITORIOUS CLAIMS AND CONTENTIONS ONLY

1. Discipline for Asserting Frivolous Position
A lawyer is subject to discipline for bringing a frivolous proceeding, or for asserting
a frivolous position in the defense of a proceeding. Likewise, a lawyer is subject
to discipline for taking a frivolous position on an issue in a proceeding. A “frivo-
lous” position is one that cannot be supported by a good faith argument under
existing law and that cannot be supported by a good faith argument for changing
the existing law. [ABA Model Rule 3.1; Restatement §110; and see Fed. R. Civ. P. 11—
litigation sanctions for frivolous pleadings and motions] Note the following:

a. It is not frivolous to assert a position without first fully substantiating all the
facts. [ABA Model Rule 3.1, comment 2]

b. It is not frivolous to assert a position knowing that vital evidence can be uncov-
ered only through discovery proceedings. [Id.]

c. It is not frivolous to assert a position even though the lawyer believes that the
position will not ultimately prevail. [Id.]

EXAMPLES
1) C purchased land bordering a government forest, hoping to obtain the necessary
government approval to build a ski resort. When the government refused to grant
the necessary approval, C hired lawyer L to sue the government for taking C’s prop-
erty without just compensation. L advised C that her legal position was contrary to
the existing law, but L developed two tenable arguments for distinguishing C’s case
from the existing law. Even though L believed that his arguments were sound, he did
not believe that they would ultimately prevail in the United States Supreme Court. L
is not subject to discipline.
 PROFESSIONAL RESPONSIBILITY 101.

2) An attorney may advise a client to take a tax position if the attorney believes
that the position has a “realistic possibility of success if the matter is litigated.” The
attorney need not be convinced that the position will ultimately prevail. But when
advising a client about a debatable tax position, the attorney must warn the client
about possible penalties and other adverse legal consequences. [ABA Formal Op.
85-352 (1985)]

2. Defending in Criminal Proceedings

Despite the general rule against taking frivolous positions, the lawyer for the defen-
dant in a criminal case (or for the respondent in a proceeding that could result in
incarceration) may conduct the defense so that the prosecutor must prove every
necessary element of the crime. [ABA Model Rule 3.1; Restatement §110(2)]

EXAMPLE
Attorney A agrees to defend D in a kidnapping case. From the facts related in
confidence by D, A concludes that D is clearly guilty as charged. If D nevertheless
wishes to plead not guilty, A will not be subject to discipline for putting the prosecu-
tion to its proofs and requiring every element of the case to be proven beyond a
reasonable doubt.

B. DUTY TO EXPEDITE LITIGATION

1. Reasonable Efforts to Expedite Litigation
A lawyer must make reasonable efforts to expedite litigation, consistent with the
interests of the client. [ABA Model Rule 3.2] A lawyer may occasionally ask for a
postponement for personal reasons, but he should not make a habit of it. [See ABA
Model Rule 3.2, comment 1]

2. Interests of the Client

The duty to expedite does not require the lawyer to take actions that would harm the
client’s legitimate interests. [See ABA Model Rule 3.2] However, realizing financial or
other benefit from otherwise improper delay is not a legitimate interest. [ABA Model
Rule 3.2, comment 1]

EXAMPLE
Client C lost her case at trial, and a judgment for $500,000 was entered against
her. C’s obligation to pay the judgment was stayed pending appeal. C instructed her
lawyer to appeal the case and to drag out the appeal as long as possible, pointing
out that she could earn an 11% return on the $500,000 while the appeal was pend-
ing. C’s lawyer obtained every possible extension of time and delayed the appeal
as long as he could. Ultimately, the appellate court affirmed the judgment below. C’s
lawyer is subject to discipline for causing delay.
102. PROFESSIONAL RESPONSIBILITY

C. DUTY OF CANDOR TO THE TRIBUNAL

1. Candor About Applicable Law
An attorney must be candid with the court about the law that applies to the case.

a. False Statements of Law

An attorney is subject to discipline for knowingly making a false statement of
law to the court or for failing to correct a previously made false statement of
material law. [ABA Model Rule 3.3(a)(1)]

EXAMPLES
1) During oral argument, attorney A cited the court to an intermediate appeals
court opinion, knowing that the opinion had later been reversed by the state’s
highest court. A is subject to discipline.
2) In a memorandum of points and authorities, attorney B cited an obscure case
for a proposition, knowing that the case held precisely the opposite. B is subject
to discipline.

b. Failing to Disclose Controlling Authority

An attorney is subject to discipline for knowingly failing to disclose to the court
a legal authority in the controlling jurisdiction that is directly adverse to the
client’s position and that has not been disclosed by the opposing counsel.
[ABA Model Rule 3.3(a)(2); Restatement §111(2); and see Jorgenson v. Volusia
County, 846 F.2d 1350 (11th Cir. 1988)—Rule 11 sanctions imposed for failure to
cite adverse authority] The attorney is, of course, free to argue that the cited
authority is not sound or should not be followed.

EXAMPLES
1) Lawyer L is representing client C in a diversity of citizenship case pending in
the United States District Court for the District of Nevada. Under the Erie doc-
trine, Nevada law (including Nevada’s choice of law rules) governs on issues of
substance. In the case at hand, Nevada’s choice of law rules make the control-
ling law that of the state of New York. L’s adversary fails to call the court’s atten-
tion to a New York Court of Appeals case that is directly contrary to the position
taken by L’s client. L must cite the case to the court.
2) Under the facts given in the example above, L would have no duty to cite the
court to a directly adverse Utah case or to a directly adverse case decided by
the United States Court of Appeals for the Fifth Circuit. Nor would L have a duty
to cite the court to a New York Court of Appeals case that was against L’s posi-
tion only by analogy. (Note, however, that many lawyers would cite these cases
to the court as a matter of sound tactics.)
 PROFESSIONAL RESPONSIBILITY 103.

2. Candor About Facts of Case

An attorney is subject to discipline for knowingly making a false statement of fact to
the court or for failing to correct a previously made false statement of material fact.
[ABA Model Rule 3.3(a)(1)] Ordinarily, an attorney is not required to have personal
knowledge of the facts stated in pleadings and other litigation documents—those
contain assertions made by the client or by other persons, not by the attorney. But
when an attorney does make an assertion of fact to the court (e.g., in an affidavit or
when asserting facts in oral argument), the attorney is expected either to know that
the assertion is true or to believe it to be true based on reasonably diligent inquiry.
Furthermore, an attorney’s failure to speak out is, in some contexts, the equivalent
of an affirmative misrepresentation (e.g., when the attorney or the client has caused
a mistake or misunderstanding). [ABA Model Rule 3.3, comment 3]

EXAMPLES
1) When the court was pondering whether to release attorney A’s client on his own
recognizance, the court asked A: “Does your client have a steady job here in the
city, counsel?” A answered: “Oh, yes, Your Honor.” If A knew that his client was un-
employed, A is subject to discipline. Furthermore, if A had never inquired about his
client’s employment status and had no reasonable basis for the assertion, A is sub-
ject to discipline.
2) When the court was deciding what sentence to impose on attorney B’s client, the
court said: “I assume that this is your client’s first drunk driving offense, counsel, so
I am ordering him to attend drunk driving school and to pay a fine of $100.” B knew
that his client had two prior drunk driving offenses and that the mandatory sentence
for the third such offense is revocation of license and 90 days in the county jail. Be-
cause neither B nor his client caused the court’s mistake, B may keep quiet. But note:
If B or his client had caused the mistake, B would have to speak up and correct it.

3. No Obligation to Volunteer Harmful Facts

An attorney generally has no obligation to volunteer a fact that is harmful to his
client’s case. The adversary system assumes that opposing sides can use discovery
proceedings and their own investigations to find out the facts. [See ABA Model Rule
3.3, comment 14] If an attorney’s adversary fails to uncover a harmful fact, an injus-
tice may result, but that is simply the way the adversary system works.

EXAMPLE
Lawyer L is defending D at the trial of a private treble damages antitrust case. Plaintiff’s
case-in-chief is defective. L knows that the defect could be cured if plaintiff were aware
of a certain meeting between D and D’s competitors. Throughout the long discovery
proceedings, plaintiff never inquired about this meeting, although he had ample op-
portunity to do so. L has no duty to volunteer information about the meeting; L’s ethical
obligation is to move for a directed verdict at the close of plaintiff’s case-in-chief.
104. PROFESSIONAL RESPONSIBILITY

a. Exception—Ex Parte Proceedings

In an ex parte proceeding, only one side is present. Because the other side
has no opportunity to offer its version of the facts, the model of the adversary
system does not apply in the ex parte context. Therefore, a lawyer in an ex
parte proceeding must inform the tribunal of all material facts known to the
lawyer that will help the tribunal make an informed decision. [ABA Model Rule
3.3(d); Restatement §112(2)]

EXAMPLE
The same day that W filed for divorce from H, W’s lawyer petitioned for a tem-
porary restraining order to prevent H from entering the family home and from
bothering the children. Because H could not be found, the court agreed to hear
the petition ex parte. At the hearing, W’s lawyer must inform the court of all the
material facts, both helpful and harmful, that bear on the issue before the court.

4. Using False Evidence

In a matter pending before a tribunal, a lawyer is subject to discipline for offering
evidence that the lawyer knows is false. [ABA Model Rule 3.3(a)(3)] “Knows” means
actual knowledge, but actual knowledge can be inferred from the circumstances.
[ABA Model Rule 1.0(f)] A lawyer should resolve doubts about veracity in favor of
her client, but a lawyer cannot ignore an obvious falsehood. [ABA Model Rule 3.3,
comment 8] Furthermore, a lawyer may refuse to offer evidence that she reasonably
believes is false, except for a criminal defendant’s testimony on his own behalf. [ABA
Model Rule 3.3(a)(3)] These principles apply, not just in court, but also in an ancillary
proceeding, such as a deposition.

a. Discovery of Falsity After Evidence Has Been Offered

If a lawyer has offered a piece of evidence and later discovers that it is false,
she must take reasonable remedial measures. First, the lawyer must speak
confidentially with her client, urging the client’s cooperation in withdrawing
or correcting the false evidence. [ABA Model Rule 3.3, comment 10] Second,
if the client will not cooperate, the lawyer should consider asking the court’s
permission to withdraw. Ordinarily, withdrawal is not mandatory, but it
becomes mandatory if the lawyer’s discovery of the false evidence creates
such a rift between the lawyer and client that the lawyer can no longer repre-
sent the client effectively. [ABA Model Rule 3.3, comment 15] Withdrawal
alone is not a sufficient remedial step if it leaves the false evidence before
the tribunal. The lawyer should also move to strike the false evidence or take
other steps to cancel out its effect. [See Restatement §120, comment h] Third,
if withdrawal is not permitted or will not solve the problem, the lawyer must
disclose the situation to the judge, even if that means disclosing the client’s
information that would otherwise be protected under the duty of confidenti-
ality. [ABA Model Rule 3.3, comment 10]
 PROFESSIONAL RESPONSIBILITY 105.

Note that the duty to rectify false evidence continues until the end of the
proceedings, which means when a final judgment has been affirmed on appeal
or the time for appeal has expired. [ABA Model Rule 3.3, comment 13]

b. False Testimony by Criminal Defendant

When a lawyer in a civil matter learns that her client has testified falsely or is
about to testify falsely, the lawyer’s path is clear. If the client has not yet testi-
fied, the lawyer cannot call her client to the stand. If the client has testified and
the lawyer learns that the testimony is false, the lawyer must take the reason-
able remedial measures explained in a., above. However, when the setting is a
criminal rather than civil case, the situation becomes more complicated. Indeed,
one of the thorniest problems in legal ethics arises when a criminal defense
lawyer learns that her client has testified falsely, or is about to testify falsely,
in his own defense. A criminal defendant has a Sixth Amendment right to the
effective assistance of counsel. A criminal defendant also has a constitutional
right to testify on his own behalf. [Rock v. Arkansas, 483 U.S. 44 (1987)] On the
other hand, a criminal defense lawyer must not present evidence that he knows
is false, and ordinarily he must not reveal the client’s confidential information.
What is the criminal defense lawyer to do when the client insists on testifying
to something that the lawyer knows (because of the client’s confidential disclo-
sures) is false?

1) ABA Model Rules and Restatement Solution

When you take the MPRE, apply the solution adopted by the ABA Model
Rules and the Restatement. [See ABA Model Rule 3.3(a)(3); Restatement
§120, comment i] That is, the criminal defense lawyer should follow the
same three steps stated in a., above. First, the lawyer must try to convince
the defendant not to testify falsely. Second, if the defendant insists on testi-
fying falsely, the lawyer should consider withdrawal, if that will solve the
problem. Usually it will not solve the problem, either because the court will
not permit withdrawal or because withdrawal will not erase or prevent the
false testimony. Third, if all else fails, the lawyer must reveal the situation to
the judge, even if that means disclosing the client’s confidential information.
The judge must then decide what to do, perhaps declare a mistrial, make
some kind of statement to the jury, or perhaps nothing. The duty to rectify
false evidence continues until the end of the proceedings, which means
when a final judgment has been affirmed on appeal or the time for appeal
has expired. [ABA Model Rule 3.3, comment 13] This solution to the problem
does not violate a criminal defendant’s constitutional right to effective assis-
tance of counsel. [Nix v. Whiteside, 475 U.S. 157 (1986)]

2) Minority View
Several jurisdictions (including New York and California) handle the problem
by allowing the criminal defendant to testify in “narrative fashion.” That
106. PROFESSIONAL RESPONSIBILITY

means that the defense lawyer questions the defendant in the ordinary
way up to the point of the false testimony. At that point, the defense
lawyer asks a question that calls for a narrative answer (such as “What else
happened?”). The defendant then tells his story. The defense lawyer is not
permitted to rely on the false parts of the story when arguing the case to
the trier of fact. ABA Model Rule 3.3 defers to the local law in jurisdictions
that follow the minority view. [ABA Model Rule 3.3, comment 7]

5. Other Corruption of an Adjudicative Proceeding

A lawyer who represents a client in an adjudicative proceeding must take appro-
priate measures to prevent any person (a client or anyone else) from committing
criminal or fraudulent conduct that will corrupt the proceedings. [See ABA Model
Rule 3.3(b)] Examples of such conduct are: (1) hiding or destroying evidence, (2)
bribing a witness, (3) intimidating a juror, (4) buying a judge, and (5) failing to obey
a law or court order to disclose information. [ABA Model Rule 3.3, comment 12]
Appropriate measures include disclosure to the court, if that becomes necessary.

EXAMPLE
Attorney A is defending surgeon S in a medical malpractice case. Student nurse N
observed the operation in question, including the act that allegedly constitutes the
malpractice. Two days before plaintiff took N’s deposition, S’s father told N: “If you
testify at your deposition that you saw S do the act in question, I’ll make sure you
never get a nursing job in this state.” At her deposition, N testified that she was not
in the operating room at the time of the alleged act. Two days after the deposition, A
learned what S’s father did. A must set the record straight; if all else fails, A must tell
the tribunal what happened.

D. DUTY OF FAIRNESS TO OPPOSING PARTY AND COUNSEL

1. Opponent’s Access to Evidence
A lawyer must not unlawfully obstruct another party’s access to evidence.
Furthermore, a lawyer must not unlawfully alter, destroy, or conceal a document or
other item having evidentiary value. In addition, a lawyer must not counsel or assist
another person to do any of these things. [ABA Model Rule 3.4(a); Restatement §118]
Suppressing or tampering with evidence may also constitute a crime. [See, e.g., Cal.
Penal Code §135]

EXAMPLE
A special prosecutor was appointed to investigate certain allegations against a gov-
ernment official. The official told his lawyer about some highly incriminating docu-
ments in a file in his office. The lawyer suggested that the official “deep six” the file
in the nearest river. The lawyer is subject to discipline.
 PROFESSIONAL RESPONSIBILITY 107.

2. Falsifying Evidence and Assisting in Perjury

A lawyer must not falsify evidence. Furthermore, a lawyer must not counsel or assist
a witness to testify falsely. [ABA Model Rule 3.4(b); Restatement §118] Well-prepared
lawyers seldom pass up an opportunity to talk to a witness before the witness
testifies. The lawyer may probe the witness’s memory, explore the basis of the
witness’s knowledge, point out holes and fallacies in the witness’s story, and seek
to refresh the witness’s recollection by proper means. [Restatement §116] However,
the lawyer must not try to “bend” the testimony or put words in the witness’s mouth.
New York’s Judge Finch put the matter this way in an 1880 disciplinary case: “[The
lawyer’s] duty is to extract the facts from the witness, not to put them into him; to
learn what the witness does know, not to teach him what he ought to know.” [In re
Eldridge, 82 N.Y. 161 (1880)]

3. Abusing Discovery Procedures

A lawyer must not make a frivolous discovery request, or fail to make reasonable
efforts to comply with a legally proper discovery request made by the adversary.
[ABA Model Rule 3.4(d)] Abuse of discovery proceedings can also subject both the
lawyer and the client to fines and other sanctions. [See, e.g., Fed. R. Civ. P. 37(b);
Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)—federal court has inherent
authority to hold counsel personally responsible for expenses and attorneys’ fees
incurred because of counsel’s bad faith in discovery]

EXAMPLE
Lawyer L intentionally failed to produce a certain set of handwritten notes that were
clearly called for by a court order. L’s conduct caused L’s adversary to spend several
hundred hours in developing alternative evidence of the facts stated in the notes. L
is subject to discipline and is subject to such other sanctions as the court may see fit
to impose.

4. Paying Witnesses
A lawyer must not offer an inducement to a witness that is prohibited by law. [ABA
Model Rule 3.4(b); Restatement §117] However, except when prohibited by local law,
the following payments to witnesses are proper.

a. Travel, Meals, and Lodging

An attorney may pay expenses reasonably incurred by the witness in attending
and testifying (e.g., travel, hotel, meals, and incidental expenses). [ABA Model
Rule 3.4, comment 3]

b. Loss of Time
An attorney may pay reasonable compensation for the witness’s loss of time in
attending and testifying (e.g., the amount the witness would have earned at her
job had she not had to come to testify). [Restatement §117, comment b]
108. PROFESSIONAL RESPONSIBILITY

c. Experts’ Fees
An attorney may pay a reasonable fee to an expert witness for preparing to
testify and for testifying. The fee must not be contingent on either the content of
the testimony or the outcome of the case. [ABA Model Rule 3.4, comment 3]

EXAMPLE
In a complex securities case, client C needed the testimony of an expert on
securities brokerage. C’s lawyer L agreed to advance the expenses for expert
E and promised to pay E’s travel, hotel, meal, and incidental expenses. L also
promised E a witness fee of $1,000 or 2% of C’s eventual recovery, whichever
was greater. The arrangement for expenses was proper, but the witness fee ar-
rangement makes L subject to discipline.

5. Securing Absence or Noncooperation of Witness

A lawyer must not advise or cause a person to secrete himself or to flee the jurisdic-
tion for the purpose of making him unavailable as a witness. [ABA Model Rule 3.4(a);
Restatement §116] A lawyer may, however, advise a person not to voluntarily give
information to an opponent or other party if the following conditions are met:
a. The person is a client, or a relative, employee, or agent of a client; and
b. The lawyer reasonably believes that the person’s interests will not be harmed
by not volunteering the information.
[ABA Model Rule 3.4(f)]

EXAMPLE
Attorney A represents W in a child custody dispute with W’s former husband, H. A
believes that H’s lawyer will probably try to interview W’s sister to find out informa-
tion about W’s fitness as a parent. Absent some kind of harm to the sister, A may
advise the sister that she need not speak voluntarily with H’s lawyer about the mat-
ter. However, if A learns that H’s lawyer is trying to serve a deposition subpoena on
the sister, A must not advise the sister to leave town or hide from the process server.

6. Violating Court Rules and Orders

A lawyer must not knowingly violate a rule of procedure, a rule of evidence, a rule of
court, or an order made by the court—but a lawyer may openly refuse to obey such
a rule or order for the purpose of making a good faith challenge to the validity of the
rule or order. [ABA Model Rule 3.4(c); Restatement §105]

EXAMPLES
1) At the jury trial of D for automobile theft, the trial judge ordered prosecutor P to
make no mention whatsoever of D’s former misdemeanor convictions. In cross-exam-
ining one of D’s witnesses, P asked: “When you and D were cellmates in the county
 PROFESSIONAL RESPONSIBILITY 109.

jail back in 1998, did D invite you to join a car theft operation after your release?” If P
was intentionally trying to evade the trial judge’s order, P is subject to discipline.
2) In the civil suit of P v. D, P demanded production of some documents that D
claimed were protected by the attorney-client privilege. The trial judge ordered the
documents to be produced in camera so that he could determine whether the docu-
ments were privileged. D’s lawyer asserted that the state law of attorney-client privi-
lege did not authorize the judge to require an in camera examination. The trial judge
refused to stay the order long enough to allow D to pursue an interlocutory appeal.
D’s lawyer may refuse to produce the documents while she seeks a writ of manda-
mus or prohibition to test the validity of the trial judge’s order. [See also In re Tamblyn,
695 P.2d 902 (Or. 1985)—attorney may advise client not to obey void court order]

7. Chicanery at Trial
A lawyer is subject to discipline for engaging in the following types of chicanery
during the trial of a case.

a. Referring to Inadmissible Material

During the trial of a case, a lawyer must not refer to material that the lawyer
does not reasonably believe is relevant or that will not be supported by admis-
sible evidence. [ABA Model Rule 3.4(e); Restatement §107]

EXAMPLES
1) At the trial of a railway accident case, plaintiff’s lawyer made repeated refer-
ence to the great size and wealth of the railway company. The comments were
irrelevant to any issue in the case and were made solely to inflame the jury. The
lawyer is subject to discipline. [See also Simmons v. Southern Pacific Transpor-
tation Co., 62 Cal. App. 3d 341 (1976)—verdict for plaintiff reversed because of
counsel’s misconduct]
2) During her opening statement to the jury, the defense lawyer pointed out that
plaintiff had offered to settle his claim for a small sum. The defense lawyer knew
that evidence of the settlement offer would not be admissible. The lawyer is
subject to discipline.

b. Asserting Personal Knowledge of Contested Facts

During the trial of a case, a lawyer must not assert personal knowledge of facts
in issue (except when testifying as a witness). [ABA Model Rule 3.4(e)]

EXAMPLE
Lawyer L represented the plaintiff in a dog bite case. The defendant contended
that he was not the owner of the offending dog. In his closing argument to the
jury, L said: “The defendant has solemnly told you that he does not own the
110. PROFESSIONAL RESPONSIBILITY

dog. As it happens, I live down the street from the defendant, and every night
about 10, I see the defendant taking that very same dog for a walk.” L is subject
to discipline.

c. Asserting Personal Opinions

During the trial of a case, a lawyer must not state a personal opinion about:

1) The justness of a cause;

2) The credibility of a witness;

3) The culpability of a civil litigant; or

4) The guilt or innocence of an accused.

[ABA Model Rule 3.4(e); Restatement §107] A lawyer may, of course, make an
argument based on the evidence concerning any of these matters.

EXAMPLES
1) During his closing argument in a routine traffic accident case, attorney A said:
“D has told you that the light was green. I was appalled to hear the man say that
from the witness stand, under oath! I don’t believe him for a minute, and I ask
you not to believe him either.” A’s argument is not proper.
2) In the example above, it would have been proper for A to make his point by
referring to the evidence rather than expressing personal opinion. For instance:
“D has told you that the light was green. D stands to lose a great deal of money
in this case. Two eyewitnesses, who have nothing to lose, testified that the light
was red. It is up to you jurors to decide whom to believe.”

8. Using Threats to Gain Advantage in Civil Case

Under the ABA Model Rules, a lawyer may bring, or threaten to bring, criminal
charges against her adversary in order to gain an advantage in a civil case, provided
that the criminal and civil matters are closely related and that both the civil case
and criminal charges are warranted by the law and the facts. [ABA Formal Op.
92-363 (1992)] However, a lawyer must not threaten to report adversary counsel for
a disciplinary violation in order to gain an advantage for her client in a civil case. If
the adversary counsel’s disciplinary violation is the kind that must be reported, the
lawyer should simply report it—she should not use it as a bargaining chip in the civil
case. [ABA Formal Op. 94-383 (1994)]

EXAMPLE
Lawyer L has personal knowledge that adversary counsel lied to the judge about a
certain document that L had requested in discovery. Lying to a judge is the kind of
conduct that raises a substantial question about a person’s fitness to practice, and
 PROFESSIONAL RESPONSIBILITY 111.

L therefore must report it. L told adversary counsel: “If you accept my client’s settle-
ment proposal, then I will not report you for lying to the judge about that document.”
L’s conduct is improper; she should simply have reported adversary counsel, not
used the misconduct as a bargaining chip in the civil case.

E. DUTY TO PRESERVE IMPARTIALITY AND DECORUM OF TRIBUNAL

1. Improper Influence
A lawyer must not seek to influence a judge, court official, juror, or prospective juror
by improper means. [See ABA Model Rule 3.5(a)] For example, a lawyer must not
offer a gift to a judge unless the judge would be allowed to accept it under the ABA
Code of Judicial Conduct.

EXAMPLE
Attorneys A and B frequently appear as counsel in the Superior Court. C is the chief
clerk of that court. All three of them are avid fishermen. A and B invite C to join them,
at their expense, for a week of salmon fishing at B’s lodge in Alaska. It would not be
proper under ABA Code of Judicial Conduct Rules 2.12(A) and 3.13(A) for C to accept
such a gift, and it is not proper for A and B to offer it to C.

2. Improper Ex Parte Communication

While a proceeding is pending in a tribunal, a lawyer must not have an ex parte
communication with a judge, court official, juror, or prospective juror except when
authorized by law or court order. [See ABA Model Rule 3.5(b)] An “ex parte communi-
cation” is a communication that concerns the matter at issue and occurs outside the
presence and without the consent of the other parties to the litigation or their repre-
sentatives. [Restatement §113, comment c]

a. Judges and Court Officials

As ABA Model Rule 3.5(b) recognizes, local law and court orders may vary
concerning ex parte communications with judges and court officials. Generally,
a written communication to a judicial officer is not ex parte if a copy of the
communication is timely sent to the opposing parties. [Restatement §113,
comment c] A lawyer must not, however, communicate orally on the merits
of a matter with the judge or other official before whom the matter is pending
without giving adequate notice to the adversary. If the local rules of court allow
lawyers to appear ex parte, without notice to the adversary, to obtain extensions
of time to plead or respond to discovery, a lawyer may do so—but the lawyer
must not discuss the merits of the case when requesting the extension of time.
[See Restatement §113(1)]

b. Jurors and Prospective Jurors

ABA Model Rule 3.5(b) recognizes that local law may vary concerning contact
112. PROFESSIONAL RESPONSIBILITY

between lawyers and jurors or prospective jurors. In general, however, before

and during the trial of a case, a lawyer who is connected with the case must
not communicate (outside of official proceedings) with a juror or member of the
panel from which the jurors will be chosen. This rule forbids communication on
any subject—even the weather. It does not matter who initiates the communica-
tion. If a juror or prospective juror attempts to communicate with a lawyer, the
lawyer must refuse. [Restatement §115] On the other hand, a lawyer who is not
connected to the case may talk to a juror or prospective juror but not about the
case (e.g., lawyer may talk to her friend the juror about the weather).

1) Investigation of Prospective Jurors

It is not improper for a lawyer to investigate members of a jury panel to
determine their backgrounds and the existence of any factors that would
be grounds for a challenge (e.g., bias, relationship to a party). Such an
investigation must be done discreetly and must not involve contact with the
prospective juror or, in most cases, her family.

a) Juror’s Internet Presence

Unless limited by law or court order, a lawyer may review a juror’s or
potential juror’s public Internet presence (e.g., postings on social media
websites) in advance of and during a trial. However, a lawyer must
not send the juror an access request (e.g., a “friend” request) either
personally or through an agent. This constitutes a prohibited ex parte
communication. [ABA Formal Op. 466 (2014)]

2) Post-Trial Communications with Jurors

After the trial is over and the jury is discharged, a lawyer must not commu-
nicate with a former jury member (or even a person who was a prospective
juror) if any of the following conditions is met: (1) local law or a court order
prohibits such communication; (2) the juror has told the lawyer that he does
not want to communicate; or (3) the communication involves misrepresenta-
tion, coercion, or harassment. [ABA Model Rule 3.5(c)]

3. Disruptive Conduct
A lawyer must not engage in conduct intended to disrupt a tribunal. [ABA Model Rule
3.5(d)] This rule applies in depositions as well as in the courtroom. [ABA Model Rule
3.5, comment 5]

EXAMPLE
Despite repeated warnings by the trial judge, attorney A persisted in banging on
the counsel table, interrupting the judge in mid-sentence, making sour faces while
witnesses were examined, and leaning over the jury rail in an intimidating manner.
A is subject to discipline (and, at the court’s discretion, to punishment for contempt
of court).
 PROFESSIONAL RESPONSIBILITY 113.

F. TRIAL PUBLICITY
The litigants in a trial have a Fifth Amendment right to have their dispute resolved on
admissible evidence, by fair procedures, in a tribunal that is not influenced by public
sentiment or outcry. Protection of that right requires some limits on the kinds of informa-
tion that can be disseminated to the public before trial—particularly where the trial is to
be by jury. On the other hand, the public and the press have countervailing rights under
the First Amendment. The public has a right to know about threats to its safety, and it has
an interest in knowing about the conduct of judicial proceedings. Moreover, the subjects
of litigation are often significant in debate over questions of public policy.

1. General Rule
A lawyer who is connected with a case must not make a public statement outside
the courtroom that the lawyer reasonably should know would have a “substan-
tial likelihood of materially prejudicing” the case (e.g., discussing the character or
credibility of a party or witness, performance or results of an examination, possibility
of a guilty plea, or existence or contents of a confession). [ABA Model Rule 3.6(a);
Restatement §109]

2. Right of Reply
A lawyer may, however, make a public statement that “a reasonable lawyer would
believe is required to protect a client from the substantial undue prejudicial effect
of recent publicity not initiated by the lawyer or the lawyer’s client.” [ABA Model
Rule 3.6(c)]

EXAMPLE
Professional tennis star Jacques LaMont was arrested for sexually assaulting an em-
ployee in the hotel where he was staying. Dozens of media reporters descended on
the inexperienced prosecutor assigned to LaMont’s case. The reporters demanded to
know what evidence there was against LaMont, who was reputed to be a clean-living
family man. The prosecutor said he could not disclose any details, but that there was
“some incriminating physical evidence,” plus a “helpful signed statement that LaMont
gave to the police voluntarily.” The prosecutor’s comments got wide coverage in the
press and on television. LaMont’s counsel feared that the prosecutor’s characteriza-
tion of LaMont’s signed statement as “helpful” would make people think that LaMont
had incriminated himself. Seeking to dispel that false impression, LaMont’s counsel
told reporters, quite accurately, that the most “incriminating” parts of LaMont’s state-
ment were that he was a paying guest of the hotel on the night in question and that
at the time in question LaMont was asleep in his own hotel room, alone. The prosecu-
tor is subject to discipline, but the defense lawyer’s statement was proper. [See ABA
Model Rule 3.6(c) and comment 5; see also ABA Model Rule 3.8(f)]

3. Additional Constraint on Criminal Prosecutors

There is an additional constraint on the prosecutor in a criminal case. The prosecutor
114. PROFESSIONAL RESPONSIBILITY

must not make extrajudicial comments that have a “substantial likelihood of height-
ening public condemnation of the accused.” [ABA Model Rule 3.8(f)]

4. Dry Facts About Case Permitted

Notwithstanding the general rule against prejudicial statements, a lawyer who is
connected with the case may publicly state the following “dry facts” about the case:

a. The claim, charge, or defense involved (provided there is an accompanying

statement that the charge is only an accusation and that the party is deemed
innocent until proven guilty);

b. The names of persons involved (unless the law prohibits it);

c. Any information that is already in the public record;

d. The scheduling or result of any step in litigation;

e. The fact that an investigation is ongoing, a request for help in getting informa-
tion, and a warning of danger (if appropriate); and

f. Routine booking information about a criminal defendant, such as his name,

address, occupation, family status, the time and place of arrest, the names of
arresting officers, and the names of investigating officers or agencies.

5. Rules Also Apply to Associated Lawyers

The rules stated above apply equally to other lawyers who are associated in a law
firm or agency with the lawyers participating in the case. [ABA Model Rule 3.6(d)]

G. TRIAL COUNSEL AS WITNESS

1. Reasons to Avoid Dual Role
Several problems are posed when a client’s trial counsel also testifies as a witness at
the trial.

a. Conflict of Interest
The dual role may create a conflict of interest between the client and the trial
counsel. For example, the trial counsel’s testimony may contradict the client’s
testimony, or the trial counsel’s obvious bias may make her an ineffective
witness on behalf of the client. [ABA Model Rule 3.7, comment 6]

b. Differing Functions
The functions of trial counsel and witness are different. A witness must state
facts objectively, but a trial counsel is supposed to present facts as a partisan
advocate. When the two roles are combined, it may be unclear whether a partic-
ular statement is to be taken as evidence or as advocacy. The tribunal itself can
 PROFESSIONAL RESPONSIBILITY 115.

object when the dual role may confuse or mislead the trier of fact. [ABA Model
Rule 3.7, comment 2]

c. Effect on Adversary
The adversary may be handicapped in challenging the credibility of one who
serves as both trial counsel and witness. Courtesy and sound tactics may force
the adversary to tread softly on cross-examination. Furthermore, a favorable
impression created as trial counsel may lend unjustified believability to the trial
counsel’s words as witness.

2. Ethical Limitations Imposed

For the foregoing reasons, the ABA Model Rules place limits on serving as both trial
counsel and witness. [See also Restatement §108] Except in the situations discussed
below, a lawyer must not act as an advocate at a trial in which the lawyer is likely to
be a necessary witness. [ABA Model Rule 3.7(a)]

a. Uncontested Matter or Mere Formality

A lawyer may serve as trial counsel if her testimony as a witness will relate solely
to an uncontested matter or to a mere formality. [See ABA Model Rule 3.7(a)(1)]

EXAMPLE
Attorney A’s testimony will be limited to the authentication of a letter, and there
is no reason to doubt the letter’s authenticity. Either A or another lawyer in her
firm may serve as trial counsel.

b. Testimony About Legal Services Rendered in the Case

A lawyer may serve as trial counsel if his testimony will relate solely to the nature
and value of legal services he has rendered in the case. [ABA Model Rule 3.7(a)(2)]

EXAMPLE
State law allows attorneys’ fees to be awarded to the victor in environmental
suits brought under the public trust doctrine. Attorney B’s client won such a
case. At the fee setting hearing, B may continue as trial counsel and may also
testify about the number of hours he spent on the case, the nature of the ser-
vices, and the amount of his ordinary hourly fee.

c. Substantial Hardship on Client

A lawyer may serve as trial counsel and also testify about any matter if withdrawal
as trial counsel would cause “substantial” hardship. [ABA Model Rule 3.7(a)(3)]
Courts tend to be narrow-minded in applying this exception. Mere duplication of
legal fees or the loss of a long working relationship with counsel are sometimes
held not to constitute substantial hardship.
116. PROFESSIONAL RESPONSIBILITY

EXAMPLE
For the past five years, attorney C has worked full-time on the discovery and
pretrial preparation of a major tax fraud case. Just before trial, C discovered
that she would have to testify on a contested issue concerning some entries
in her client’s books of account. If C withdraws as trial counsel, it will cost her
client many thousands of dollars in extra legal fees, and it will delay the trial by
18 months. The substantial hardship exception ought to apply here, but there is
some authority to the contrary.

d. Other Lawyers in Firm May Be Witnesses

A lawyer is permitted to act as an advocate at a trial in which another lawyer in
the lawyer’s firm is likely to be called as a witness unless precluded from doing
so by the conflict of interest rules. [ABA Model Rule 3.7(b)]

3. Conflict of Interest Rules Also Apply

A lawyer who is asked to be both an advocate and a witness must comply not only
with ABA Model Rule 3.7, but also with the general conflict of interest principles
stated in ABA Model Rules 1.7 (current clients) and 1.9 (former clients). For instance,
the dual role can create a conflict between the current client’s interest in winning the
case and the lawyer’s interest in earning a fee as trial counsel.

EXAMPLE
Rock climbers A, B, C, and L (a lawyer) went on a rock climbing venture guided by
professional climber Bea Lai Long. C was badly injured on the climb, allegedly by
Bea’s foolhardy decision to take an exposed route when a storm was approaching.
A, B, and L were the only people who saw what happened to C, and their testimony
will be vital to C’s claim against Bea. C has asked L to be her trial counsel. L would
like to earn the fee, but he also knows that his testimony about the accident will be
open to attack for bias; C might be better off having another trial counsel and using
L only as an eyewitness. L must not represent C unless he fully explains the conflict
to C and obtains her informed consent, confirmed in writing.

VII. TRANSACTIONS AND COMMUNICATIONS WITH PERSONS

OTHER THAN CLIENTS

A. TRUTHFULNESS IN STATEMENTS TO THIRD PERSONS

1. Must Not Make False Statements of Material Fact or Law
When dealing on behalf of a client with a third person, a lawyer must not knowingly
make a false statement of law or material fact. [ABA Model Rule 4.1(a); Restatement
§98] Generally, a lawyer has no duty to inform a third person of relevant facts. [ABA
Model Rule 4.1, comment 1] However, a lawyer must not misrepresent the facts.
 PROFESSIONAL RESPONSIBILITY 117.

a. Types of Misrepresentation
A misrepresentation can occur when the lawyer makes a statement knowing
that it is false, when the lawyer affirms or incorporates a statement knowing that
it is false, when the lawyer states something that is partly true but misleading, or
in some contexts when the lawyer fails to speak or act. [Id.]

EXAMPLES
1) Lawyer L represented seller S in negotiating a sale of S’s farm to buyer B. L
and S accompanied B on a walking tour of the farmlands, and it soon became
apparent to them that B knew little or nothing about farming. When B looked
over the north 40 acres, he said: “I assume that the soil and water here would
be good for a nice walnut orchard.” L and S both knew that the soil was far too
wet and heavy to grow walnuts. S replied: “Oh, you’d be surprised what can
grow here.” L said nothing. L’s failure to speak out in this context is equivalent to
an affirmative misrepresentation. L is subject to discipline.
2) Attorney A represented plaintiff P in a personal injury case. P died while
settlement negotiation was going on with the defendant. A must not pursue the
settlement negotiation without notifying the defense lawyer of P’s death. [ABA
Formal Op. 95-397 (1995)]

b. Distinguish Conventional Puffery

Under generally accepted conventions in negotiation, certain types of state-
ments ordinarily are not taken as statements of material fact. Estimates of price
or value placed on the subject of a transaction are ordinarily regarded as mere
puffery, and so is a statement of a party’s intentions as to settlement of a claim.
[ABA Model Rule 4.1, comment 2]

EXAMPLE
Attorney A was employed by Consolidated Liability Insurance Company to defend
its insured, D, in an automobile accident case. After careful investigation, A con-
cluded that D was clearly at fault. A advised Consolidated to settle, and Consoli-
dated authorized A to settle the case for any sum under $10,000. A few days later,
plaintiff’s lawyer telephoned A and suggested that they meet to discuss a settle-
ment. A responded: “I will be glad to listen to whatever you have to propose, but I
sincerely doubt that Consolidated will be interested in settling—I think we can win
this one at trial.” Under generally accepted conventions, A’s statements would be
regarded as mere puffery, not as false statements of material fact.

2. Failure to Disclose Material Facts—Client’s Crime or Fraud

A lawyer must disclose material facts to a third person when necessary to avoid
assisting the client in a crime or fraud—unless the lawyer is forbidden to do so by the
ethical duty of confidentiality. [ABA Model Rule 4.1(b)] Under the ABA Model Rules
118. PROFESSIONAL RESPONSIBILITY

view, where the duty of confidentiality prevents the lawyer from disclosing material
facts, and where continued representation would require the lawyer to assist in
the client’s crime or fraud, the lawyer must withdraw. [See ABA Model Rules 1.16(a)
(1), 1.2(d); ABA Formal Op. 92-366 (1992)] The lawyer may notify the affected third
person of the withdrawal and may withdraw or disaffirm any opinion, document, or
affirmation previously furnished in connection with the matter. [See ABA Model Rules
1.2, comment 10; 4.1, comment 3; and see ABA Formal Op. 92-366 (1992)]

EXAMPLE
Client C hired attorney A to obtain import licenses to sell C’s chemical fertilizer in
Australia and New Zealand. While the license applications were pending, C and A
negotiated a contract to sell C’s entire fertilizer business to X. At C’s request, A pre-
pared a “Statement of Operations, Assets, and Liabilities” for X. In the statement, A
represented that the Australian and New Zealand import licenses were pending and
that in A’s opinion they would be granted. Before the sale was closed, both Austra-
lia and New Zealand notified C that they would not issue the import licenses, and C
conveyed this information to A in confidence. A advised C that X must be informed of
this material fact, but C responded: “To hell with X—your job is to get the sale com-
pleted. Now get busy.” Under the ABA Model Rules view, the duty of confidentiality
forbids A from revealing the license denial to X, but if A continues with the represen-
tation, he will be assisting C in defrauding X. A must withdraw. A may advise X of his
withdrawal, and he may disaffirm his prior opinion as to the Australian and New Zea-
land import licenses. The Restatement takes a simpler, more forthright position. The
news of the license denial is not protected by the duty of confidentiality because the
law of fraud requires A to disclose it to X. [See Restatement §§63, 98, comment d]

B. COMMUNICATION WITH PERSONS REPRESENTED BY COUNSEL

1. When Communication Forbidden
A lawyer must not communicate about a matter with a person the lawyer knows
is represented by counsel, unless that person’s counsel consents, or unless the
law or a court order authorizes the communication. This is true even if the repre-
sented person initiates or consents to the communication. [ABA Model Rule 4.2;
Restatement §99]

EXAMPLES
1) In the case of P v. D, the lawyer for D had excellent reason to believe that P’s law-
yer had failed to convey D’s settlement offer to P. D’s lawyer therefore telephoned P
and made the settlement offer directly. D’s lawyer is subject to discipline for commu-
nicating with a represented person without consent of that person’s counsel. [ABA
Formal Op. 92-362 (1992)] P’s lawyer is also subject to discipline if he failed to con-
vey D’s settlement offer to P.
 PROFESSIONAL RESPONSIBILITY 119.

2) Defendant D was in jail awaiting trial for murder. D was represented by appointed
counsel. Without the consent of the appointed counsel, the prosecutor visited D at
the jail and discussed the possibility of a plea bargain with D. The prosecutor is sub-
ject to discipline. [ABA Model Rule 4.2, comment 5; ABA Formal Op. 95-396 (1995);
Restatement §99, comment h]

2. Application to Organizations
Corporations and other organizations are “persons” for purposes of this rule. Thus,
a lawyer must get the consent of the organization’s counsel before communicating
with the following constituents of the organization:

a. A person who supervises, directs, or regularly consults with the organiza-

tion’s lawyer about the matter at hand;

b. A person whose conduct may be imputed to the organization for purposes of

criminal or civil liability; or

c. A person who has authority to obligate the organization concerning the

matter.

[ABA Model Rule 4.2, comment 7] Note that if the constituent is represented in the
matter by her own counsel, then consent by that counsel (rather than the organiza-
tion’s counsel) is sufficient. Consent is not needed before talking to a former constit-
uent of the organization. [Id.] However, when talking with either a present or former
constituent, a lawyer must take care not to violate the organization’s legal rights,
such as the attorney-client privilege.

EXAMPLE
Lawyer L represents the plaintiff in a defamation action against the Herald Newspa-
per Corp. Without getting the permission of the Herald’s counsel, L interviewed the
newspaper’s former editor-in-chief and convinced him to disclose some privileged
communications he had with the newspaper’s lawyer about the case. L acted im-
properly in prying into the privileged communications. [Id.; and see ABA Model Rule
4.4, comment 1]

3. Communications Allowed by the Rule

The rule does not prohibit: (1) a lawyer from communicating with a represented
person when the communication is authorized by law or court order or when the
communication does not concern the subject of the representation; (2) represented
persons from communicating directly with each other; and (3) a lawyer from inter-
viewing an unrepresented person who will be called as a witness by some other
party. [ABA Model Rule 4.2, comment 4; and see Lewis v. S.S. Baune, 534 F.2d 1115
(5th Cir. 1976)]
120. PROFESSIONAL RESPONSIBILITY

EXAMPLE
In a complex contract suit between P and D, both parties were represented by coun-
sel. For several months, the respective sets of lawyers tried to work out a satisfac-
tory settlement, but without success. P concluded that the lawyers had become
befogged by petty detail and bickering. P therefore invited D out to lunch, and the
two of them worked out a settlement within the space of an hour. Direct communica-
tion between represented persons is not prohibited by the rule.

C. DEALING WITH UNREPRESENTED PERSONS

When dealing with an unrepresented person, a lawyer must not state or imply that the
lawyer is disinterested. When the lawyer knows, or reasonably should know, that the
unrepresented person misunderstands the lawyer’s role in the matter, the lawyer must
make reasonable efforts to correct the misunderstanding. Likewise, if the lawyer knows
or should know that her client’s interests are likely to be in conflict with those of the
unrepresented person, she must not give legal advice to that person (other than to get a
lawyer). [ABA Model Rule 4.3; Restatement §103] The rule does not, however, prevent a
lawyer from negotiating a transaction or settling a client’s dispute with an unrepresented
person. [ABA Model Rule 4.3, comment 2]

EXAMPLE
Property owner O wants to lease his empty retail store to merchant M, who wants to use it
for a shoe store. M does not have a lawyer, but O is represented by attorney A. In negotiat-
ing the terms of the lease, A may communicate directly with M, but A should make clear
to M that A represents O and is not looking out for M’s interests. During the lease negotia-
tions, A may tell M what terms will be acceptable to O. A may also draft a proposed lease
agreement and may explain to M what A believes the legal effect of the lease will be. [Id.]

D. RESPECT FOR RIGHTS OF THIRD PERSONS

1. Heavy-Handed Tactics
In representing a client, a lawyer must not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person. [ABA Model Rule
4.4(a)] Furthermore, a lawyer must not use methods of obtaining evidence that
violate the legal rights of a third person.

EXAMPLES
1) When preparing to cross-examine witness W, attorney A discovered that W had
six misdemeanor convictions for prostitution. A knew that under the applicable
evidence law, he would not be allowed to use those misdemeanor convictions for
impeachment, and A knew that they were not otherwise relevant to the proceeding.
Nonetheless, on cross-examination, A asked: “How old were you when you decided
to devote your life to prostitution, Miss W?” A is subject to discipline.
 PROFESSIONAL RESPONSIBILITY 121.

2) Lawyer L represented P in a complicated trade secrets case against D Corpora-

tion. During discovery, L used a subpoena duces tecum to require E Corporation (a
nonparty) to produce thousands of documents in connection with the depositions
of some employees of E Corporation. The lawyer for E Corporation allowed L to
personally go through E Corporation’s files to pick out and photocopy documents
responsive to the subpoena. While doing that, L made copies of many other docu-
ments that were not covered by the subpoena, and L did not tell the lawyer for E
Corporation what he had done. L is subject to discipline.
3) Deputy District Attorney A was assigned to prosecute a bank robbery case
against D. A suspected that heroin addict X could probably furnish valuable evi-
dence against D but that X would doubtless refuse to do so. Therefore, A told the
police: “Go pick up X on suspicion of drug peddling, and we’ll find out what he
knows about D and the bank robbery.” A is subject to discipline.

2. Documents Sent to Lawyer by Mistake

Lawyers sometimes receive documents that were sent to them by mistake. That
happens with e-mail, fax transmission, postal service, and even personal messenger
service. It can also happen when documents—whether paper documents or
electronically stored information—are produced pursuant to a discovery request.
When a lawyer obtains such a document, and when she knows or reasonably should
know that it was sent by mistake, she must promptly notify the sender so that the
sender can take protective measures. [ABA Model Rule 4.4(b) and comment 2] The
Model Rule does not address some related questions on which state law is split: e.g.,
whether the recipient must return the document to the sender, or delete electroni-
cally stored information, and whether the inadvertent disclosure of the document
waives a privilege that would otherwise protect it.

VIII. DIFFERENT ROLES OF THE LAWYER

A. LAWYER AS ADVISOR TO THE CLIENT

1. Duty to Render Candid Advice
When acting as advisor to a client, a lawyer must exercise independent judgment
and render candid advice. [ABA Model Rule 2.1] Candid advice is sometimes hard
to take—the facts may be harsh and the choices unattractive. The lawyer should
attempt to keep the client’s morale up but should neither sugarcoat the advice nor
delude the client. [See ABA Model Rule 2.1, comment 1]

2. Giving Advice Beyond the Law

A lawyer may give a client not only legal advice, but also moral, economic, social,
or political advice when relevant to the client’s situation. [ABA Model Rule 2.1] When
appropriate, a lawyer may also urge a client to seek advice from persons in related
122. PROFESSIONAL RESPONSIBILITY

professions—e.g., advice from an accountant, psychiatrist, physician, or family

counselor. [See ABA Model Rule 2.1, comment 4]

3. Volunteering Advice
A lawyer ordinarily has no duty to give advice until asked. However, if the lawyer
knows that the client is planning a course of action that will have substantial adverse
legal consequences for the client, the lawyer may volunteer advice without being
asked. [See ABA Model Rule 2.1, comment 5]

EXAMPLE
Client C hired lawyer L to do some tax work. In the course of that work, L learned
that C was regularly putting large amounts of money into a trust established for her
grandchildren. If L reasonably believes that C is endangering her ability to provide
for her own needs in old age, L may call that fact to C’s attention, and L may assist C
in working out a safer plan for investment and disposition of her assets.

B. EVALUATION FOR USE BY THIRD PERSONS

ABA Model Rule 2.3 concerns the lawyer who is asked, expressly or impliedly, to evaluate
the affairs of a client and to supply the evaluation for use by third persons.

EXAMPLES
1) Client X asks her lawyer to evaluate her legal title to 40 acres of ranch land and to fur-
nish the evaluation to a proposed purchaser of the land.
2) Client Y Corp. wants to borrow a large sum from a bank and asks its lawyer to evaluate
its legal and business affairs and to furnish a report to the bank.
3) Client Z, a school district, proposes to issue some school bonds and asks its lawyer to
examine its situation and its proposed bond issue and to render a legal opinion for use
by election officials, voters, and potential investors.

Note that in each of the foregoing examples, the client is the person or entity whose
affairs are to be evaluated by the lawyer. ABA Model Rule 2.3 does not apply when a
client asks a lawyer to evaluate the affairs of a third party and then to make a report to
the client.

EXAMPLE
Bank proposes to lend a large sum of money to Y. Bank therefore asks its own lawyer to
evaluate Y’s business and legal affairs and to report back to Bank. ABA Model Rule 2.3
does not apply to this situation. [ABA Model Rule 2.3, comment 2]

1. Requirements of the Rule

A lawyer may evaluate a client’s affairs for the use of a third person if the lawyer
 PROFESSIONAL RESPONSIBILITY 123.

reasonably believes that making the evaluation is compatible with the lawyer’s other
responsibilities to the client. [ABA Model Rule 2.3(a)]

EXAMPLE
Lawyer L is defending client D Company in a suit for infringement of three United
States patents. If D loses the infringement suit, its business will be virtually wiped
out. D seeks to borrow a substantial sum of money from trust company T, and D
asks L to evaluate its business and its pending litigation and to render a report to T.
L should decline to perform the evaluation. L’s responsibilities to D as an advocate in
the patent infringement case are not compatible with rendering a candid evaluation
for use by T. [See ABA Model Rule 2.3, comment 3]

2. Harmful Evaluation
If the lawyer knows or should know that the evaluation will materially harm the client,
the lawyer must obtain the client’s informed consent before making the evaluation.
[ABA Model Rule 2.3(b)]

3. Confidentiality
Except as disclosure is authorized in connection with a report of an evaluation,
the ordinary rules of confidentiality apply to information gained during the evalua-
tion. [ABA Model Rule 2.3(c)] The client may limit the scope of the evaluation or the
sources of information available to the lawyer, but the lawyer should describe any
material limitations in the report furnished to the third person. [ABA Model Rule 2.3,
comment 4] The lawyer may have other legal duties to the third person in connec-
tion with the report—that depends on the applicable law and is not covered in ABA
Model Rule 2.3. [ABA Model Rule 2.3, comment 3]

4. Lawyer’s Liability to Third Person

A lawyer who is hired to evaluate a client’s affairs for a third person may be liable to
the third person for negligence in rendering the evaluation.

EXAMPLE
Client C hired attorney A to evaluate C’s financial condition for bank B in the hope
that B would lend money to C. A’s opinion letter to B negligently misrepresented C’s
financial condition, as a direct result of which B suffered a large loss. A is liable to B
for the negligent misrepresentation. [See Vereins-Und Westbank, AG v. Carter, 691 F.
Supp. 704 (S.D.N.Y. 1988)]

5. Cases in Which Opinion Is to Be Widely Disseminated

When a lawyer agrees to certify facts to a large number of persons who can be
expected to rely on the lawyer, the lawyer has a special obligation to be complete,
accurate, and candid.
124. PROFESSIONAL RESPONSIBILITY

a. Securities Cases
This special obligation most often arises when a lawyer has prepared an opinion
letter to be used in disclosure documents for securities investors. The lawyer
may be held liable for both misstatements and omissions of material facts. [SEC
v. National Student Marketing Corp., 457 F. Supp. 682 (D.D.C. 1978)]

1) Due Diligence Required

A lawyer is not a guarantor of every fact in the disclosure materials about
the company or transaction. However, if the disclosures are inconsistent, or
the lawyer has any reason to doubt their accuracy, the lawyer has a duty to
inquire to determine the correct facts. [ABA Formal Op. 335 (1974)]

b. Tax Shelter Opinions

When a lawyer gives a widely disseminated legal opinion about the tax treat-
ment likely to be afforded an investment, the lawyer must candidly disclose and
estimate the degree of risk that the IRS will not allow the tax treatment being
sought, even if such disclosure will be contrary to the interest of the client in
selling the investment. [ABA Formal Op. 346 (1982)]

C. LAWYER AS NEGOTIATOR
Lawyers must negotiate in both litigation (e.g., settlement negotiations) and nonlitigation
contexts (e.g., real estate transactions, business merger negotiations). Issues of honest
and affirmative disclosure often arise in connection with such negotiations. Thus, the
Rules prohibit a lawyer from making a false statement of material fact. [ABA Model Rule
4.1(a)] However, the lawyer is under no duty to do the other side’s fact research or volun-
teer any facts that would undermine the client’s position.

1. Puffing and Subjective Statements

Because it is the essence of negotiation that the lawyer attempt to magnify the
strength of the client’s position, there are some statements that the ABA Model Rules
will allow even though they may constitute “puffing” of the client’s position—i.e., they
are not considered statements of material fact. The key factor to examine when deter-
mining if a statement contains a material fact is whether the opposing party would be
reasonable in relying on the statement made. Certain types of subjective statements,
such as those relating to the relative merits of the case, estimates of price and value,
and a party’s intentions as to an acceptable settlement are not considered statements
of material fact in this context. [ABA Model Rule 4.1, comment 2]

2. Misapprehension
A lawyer who believes an opponent is underestimating the strength of his client’s
position has no duty to correct that misapprehension unless the lawyer or the client
caused it. [Brown v. County of Genesee, 872 F.2d 169 (6th Cir. 1989)—opponent
miscalculated amount of lost pay] However, in certain instances, the opponent’s lack
of knowledge of pertinent facts may be so important that disclosure is required.
 PROFESSIONAL RESPONSIBILITY 125.

EXAMPLES
1) Plaintiff’s lawyer failed to disclose to the defendant that, during the settlement ne-
gotiations, the plaintiff, who was considered to be a strong witness, died. The settle-
ment of the case was set aside. [Virzi v. Grand Trunk Warehouse, 571 F. Supp. 507
(E.D. Mich. 1983)]
2) Prosecutor had a duty to disclose to a criminal defendant that, prior to the accep-
tance of his guilty plea, physical evidence of the defendant’s guilt was accidentally
destroyed. [Fambo v. Smith, 433 F. Supp. 590 (W.D.N.Y. 1977)]

D. LAWYER AS THIRD-PARTY NEUTRAL

1. General Principles
A lawyer serves as a third-party neutral when she assists two or more nonclients
in resolving a dispute or other matter that has arisen between them. [ABA Model
Rule 2.4(a)] Examples of a third-party neutral are an arbitrator, mediator, conciliator,
or evaluator. [ABA Model Rule 2.4, comment 1] Nonlawyers can serve as third-party
neutrals, but some court rules require lawyers for some types of cases. When a
lawyer serves as a third-party neutral, she is subject not only to the ordinary rules
of legal ethics, but also to various codes of conduct devised by groups such as the
American Arbitration Association. [ABA Model Rule 2.4, comment 2]

2. Warning to Unrepresented Parties

A lawyer who serves as a third-party neutral does not represent any of the parties.
A party who is not familiar with arbitration, mediation, or the like, and who is not
represented by counsel, may erroneously believe that the lawyer third-party neutral
is protecting his interests, but that is not so. The lawyer must therefore clearly
explain the situation to the unrepresented party; e.g., the lawyer should explain that
the attorney-client privilege does not apply to communications between them. [ABA
Model Rule 2.4, comment 3]

3. Conflicts of Interest
A lawyer who serves as a third-party neutral in a matter must not thereafter become
the lawyer for anyone involved in the matter, unless all of the parties give their
informed consent, confirmed in writing. [ABA Model Rule 1.12(a)] This conflict is imputed
to other lawyers in the lawyer’s firm, but it can be solved by screening the lawyer from
the matter, assuring that he does not share the fee, and notifying the parties in writing
about the screening arrangement. [ABA Model Rule 1.12(c)] No conflict arises when a
lawyer who served as a partisan arbitrator for a party is later asked to become that
party’s lawyer. [ABA Model Rule 1.12(d)]

E. SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case is not simply an advocate but also a minister of justice; the
prosecutor’s primary goal is to seek justice, not to convict. Thus, the prosecutor must assure
126. PROFESSIONAL RESPONSIBILITY

that the defendant is tried by fair procedures and that guilt is decided on proper and sufficient
evidence. Local laws may impose additional duties on a prosecutor, and failure to comply with
such laws is grounds for professional discipline. [ABA Model Rule 3.8, comment 1]

1. Prosecuting Without Probable Cause

A prosecutor must not prosecute a charge that she knows is not supported by
probable cause. [ABA Model Rule 3.8(a)]

2. Protecting Accused’s Right to Counsel

A prosecutor must make reasonable efforts to assure that the accused is:

a. Advised of the right to counsel;

b. Advised of the procedure for obtaining counsel; and

c. Given a reasonable opportunity to obtain counsel.

[ABA Model Rule 3.8(b)]

EXAMPLE
Sheriff S is in charge of the county jail. S has established jail regulations that fre-
quently result in an accused being held incommunicado for a long period before
being given a chance to use the telephone. County District Attorney A must make
reasonable efforts to have the jail regulations changed. [See ABA Model Rule 3.8(b)]

3. Securing Waiver of Pretrial Rights

A prosecutor must not seek to obtain from an unrepresented accused a waiver
of important pretrial rights, such as the right to a preliminary hearing. Note: An
accused who is appearing pro se with the court’s approval is not “unrepresented” for
purposes of this rule. [ABA Model Rule 3.8(c) and comment 2]

EXAMPLE
Indigent accused A was advised of his right to remain silent and of his right to have
counsel appointed to defend him. A asked for the services of a public defender,
and A said that he did not want to make any statement. Before the public defender
arrived, A was brought to a small room and allowed to relax over a cup of coffee. At
that time, prosecutor P urged him to “assist us voluntarily in finding out what hap-
pened so we can clear this up and get you out of here without getting into legal
technicalities.” P is subject to discipline.

4. Disclosing Evidence that May Help Defense

A prosecutor must timely disclose to the defense all evidence and information
known to the prosecutor that tends to negate the guilt of the accused or mitigate
the degree of the offense. [ABA Model Rule 3.8(d)] Failure to disclose material
 PROFESSIONAL RESPONSIBILITY 127.

information may deprive the defendant of due process. [See Brady v. Maryland, 373
U.S. 83 (1963), explained in United States v. Bagley, 473 U.S. 667 (1985)]

EXAMPLE
D was accused of second degree murder. Prosecutor P asked the county coroner
to pay special attention to the size, shape, and location of the stab wound that killed
the victim. The coroner reported that the wound was probably inflicted by a person
who was being held down on the ground by the victim. Since this information tends
to suggest self-defense, P must promptly report it to D’s lawyer.

5. Disclosing Information that May Mitigate Punishment

When a convicted person is to be sentenced, the prosecutor must disclose to the
defense and to the court all unprivileged mitigating information known to the prose-
cutor (except when a protective order of the court relieves the prosecutor of this
obligation). [ABA Model Rule 3.8(d)]

6. Public Statements About Pending Matters

Except for statements that are necessary to inform the public of the nature and
extent of the prosecutor’s action and that serve a legitimate law enforcement
purpose, a prosecutor must not make extrajudicial statements that have a “substan-
tial likelihood of heightening public condemnation of the accused.” A prosecutor
must take reasonable care to prevent investigators, police, employees, and other
subordinates from making such statements. [ABA Model Rule 3.8(f)]

7. Disclosing Evidence to Remedy Conviction

A prosecutor must promptly disclose new, credible, and material evidence that
creates a reasonable likelihood that a defendant was wrongly convicted. [ABA Model
Rule 3.8(g)] Further, the prosecutor must seek to remedy the conviction of a defen-
dant in his jurisdiction if he knows of clear and convincing evidence that the defen-
dant was innocent. [ABA Model Rule 3.8(h)]

8. Subpoenaing Other Lawyers

A prosecutor must not subpoena another lawyer to give evidence about a client
or former client unless the evidence is not privileged, is essential, and cannot be
obtained in another way. [ABA Model Rule 3.8(e)]

9. Other Government Lawyers

Many of the above duties are incumbent on all government lawyers, not merely
public prosecutors.

a. Terminating Actions
A government lawyer with discretionary power relative to civil litigation should
not institute or continue actions that are obviously unfair. [Freeport-McMoRan
Oil & Gas Co. v. F.E.R.C., 962 F.2d 45 (D.C. Cir. 1992)]
128. PROFESSIONAL RESPONSIBILITY

b. Developing Full Record

Even if litigation appears warranted, a government lawyer has a responsibility
to develop a full and fair record. The lawyer must not use her position or the
economic power of the government to harass parties or to force unjust settle-
ments or results.

F. ADVOCATE IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS

1. Appearances in a Representative Capacity
Lawyers sometimes appear before legislatures, city councils, executive agencies,
regulatory boards, and other groups that act in a rule-making or policy-making
capacity. When a lawyer appears on behalf of a client before a legislative body or
administrative agency, the lawyer must disclose that she is acting in a representative
capacity (not on her own behalf). [ABA Model Rule 3.9; Restatement §104]

EXAMPLE
The Columbia Association of Manufacturers and Retailers hired lawyer L to assist it
in opposing a proposed new inventory tax. In that capacity, L testified in hearings
before the Finance Committee of the Columbia Municipal Council. In her testimony,
L presented both legal and economic arguments against the proposed tax. L must
disclose to the Finance Committee that she is acting in a representative capacity.

2. Duties of Candor and Respect

When a lawyer represents a client before a legislative body or administrative agency
in an official hearing or meeting at which the lawyer or client presents evidence or
argument, the lawyer must, generally speaking, follow the same rules as though in
court. [ABA Model Rule 3.9 and comment 2] For example, the lawyer must not make
false statements of fact or law, offer evidence known to be false, obstruct access to
evidence, knowingly violate the rules and orders of the legislative or administrative
body, seek to use undue influence, or engage in disruptive conduct. [ABA Model Rules
3.9, 3.3(a) - (c), 3.4(a) - (c), 3.5] A lawyer should comply with these rules even though the
rules do not bind nonlawyers who do similar work. [ABA Model Rule 3.9, comment 2]

3. Limits of These Rules

The rules stated in 1. and 2., above, do not apply: (1) when a lawyer represents a
client in bilateral negotiations with the government, (2) in an application for a license
or other privilege, (3) when the government is investigating the client’s affairs, or (4)
when the government is examining the client’s compliance with a regular reporting
requirement (such as the filing of tax returns).

G. ORGANIZATION AS CLIENT
1. Duty of Loyalty to Organization
A corporation, governmental agency, unincorporated association, or similar
 PROFESSIONAL RESPONSIBILITY 129.

organization is a legal entity, but it must act through the people who make up the
organization—the directors, officers, agency employees, shareholders, owners,
or the like. A lawyer who represents an organization obviously must work through
those people. However, when the organization is the lawyer’s client, the lawyer owes
the duty of loyalty to the organization—not to the people who are its constituents.
[ABA Model Rule 1.13(a); Restatement §96]

2. Conflicts Between the Organization and Its Constituents

Ordinarily, there is no conflict between the interests of the organization and the
interests of the people who make up the organization. Sometimes, however, their
interests do come into conflict. When they do, the lawyer for the organization should
caution the person in question that the attorney represents the organization, not
the person. For instance, the lawyer should warn the person that communications
between them may not be protected by the attorney-client privilege. Furthermore,
when appropriate, the lawyer should advise the person to obtain independent legal
counsel. [ABA Model Rule 1.13, comment 10]

EXAMPLE
The board of directors of Growers’ Export Corp. instructed the corporation’s general
counsel to give classes for all management personnel concerning the laws and cor-
porate rules against using bribery and kick-backs when negotiating business con-
tracts in foreign nations. After such a class, one of the foreign office managers told
the general counsel that he had frequently used bribes to secure business for the
corporation. The general counsel should remind the manager that she represents
the corporation, not the manager, that bribery is both illegal and against the rules of
the corporation, and, if appropriate, that the manager should seek independent legal
counsel. [See ABA Model Rule 1.13(f); ABA Model Rule 1.13, comment 10]

3. Protecting the Organization’s Interests

If the lawyer for an organization learns that a person associated with the organiza-
tion has acted, or is about to act, in a way that violates a duty to the organization or
a law in a way that might be imputed to the organization, and if the violation is likely
to cause substantial injury to the organization, the lawyer must proceed as is reason-
ably necessary to protect the interests of the organization. [ABA Model Rule 1.13(b)]

a. Duty to Report to Higher Authority in Organization

In the situation described above, the lawyer must ordinarily report the violation
to a higher authority in the organization (e.g., to a corporation’s president). If
necessary, the lawyer must report it to the organization’s highest authority (e.g.,
a corporation’s outside directors). ABA Model Rule 1.13(b) does, however, give
the lawyer a narrow range of discretion—she need not report the violation if
she reasonably believes that the organization’s best interests do not require the
violation to be reported. [Id.]
130. PROFESSIONAL RESPONSIBILITY

b. Duty to Report Outside the Organization

If the lawyer reports the violation to the organization’s highest authority, but
the highest authority fails to take timely, appropriate action, the lawyer may
report the relevant information to appropriate persons outside of the organi-
zation. This is true even if the information would otherwise be protected by
the duty of confidentiality expressed in ABA Model Rule 1.6. [ABA Model Rule
1.13(c)] However, the lawyer’s authority to report to outsiders applies only if, and
to the extent that, the lawyer reasonably believes that reporting is necessary
to prevent substantial injury to the organization. The authority to report to
outsiders does not apply to a lawyer who is hired by the organization to investi-
gate an alleged violation of law or to defend the organization or its constituents
against a claimed violation of law. [ABA Model Rule 1.13(d)]

EXAMPLE
Attorney A’s corporate client produces frozen chicken pies. C’s production pro-
cess creates large quantities of liquid waste, which C is supposed to pump into
recycling tanks. C’s manufacturing vice president sometimes orders his workers
to dump the waste into a ditch that drains into some neighboring wetlands; the
dumping is cheaper and quicker, but it gradually destroys the wetlands in violation
of state and federal environmental laws. When A learns about the dumping, she
reports it to C’s president and warns him that C will be fined millions of dollars if
it gets caught. C’s president ignored A’s warning, so A reported the matter to the
highest authority in the company—the audit committee of the board of directors.
The audit committee did nothing. If A reasonably believes that the company will
be seriously injured if the dumping continues, A may report the relevant informa-
tion to the appropriate environmental enforcement authority, even if some of that
information would otherwise be protected by the duty of confidentiality.

c. Whistle Blower Protection

A lawyer who reasonably believes that she has been fired because she acted
pursuant to Model Rule 1.13(b) or (c) (see a. and b. above), or who withdraws
under circumstances that require or permit her to act pursuant to either of those
paragraphs, must proceed as she reasonably believes necessary to assure that
the organization’s highest authority is informed of the firing or withdrawal. [ABA
Model Rule 1.13(e)]

4. Representing Both the Organization and an Associated Person

The lawyer for an organization may represent both the organization and one or more
of the directors, officers, employees, or other persons associated with the organiza-
tion, provided that the ordinary conflict of interest rules are satisfied. [ABA Model Rule
1.13(g); Restatement §§96, comment h, 131, comment e] When dual representation
requires the consent of the organization, the consent must be given by an appropriate
person other than the person to be represented. [ABA Model Rule 1.13(g)]
 PROFESSIONAL RESPONSIBILITY 131.

EXAMPLE
The Anti-Nuclear Coalition sued Consolidated Light and Power Co. and the president
of Consolidated under federal, state, and common law to prevent Consolidated from
starting up a nuclear generating plant that it had constructed. The firm of W, X & Y
was retained to represent both Consolidated and its president. After careful examina-
tion, the firm concluded that it could represent both clients effectively, even though
their interests potentially conflict on one or two points. After the firm explained the
potential conflicts, the president gave informed consent on his own behalf, confirmed
in writing, and the chairman of the board of directors gave informed consent on be-
half of the company, confirmed in writing. The dual representation is proper.

5. Serving as Both Director and Lawyer

The ABA Model Rules do not forbid a lawyer from serving as both a director of an
organization and as a lawyer for the organization, but the Model Rules point out
that the dual role can create conflicts of interest. For instance, when the lawyer
participates in a meeting as a director (rather than as the organization’s lawyer), the
attorney-client privilege will not apply to communications at the meeting, but some
of the other directors may not realize that. If there is a substantial risk that the dual
role will compromise the lawyer’s professional judgment, the lawyer should either
resign as director or not act as the organization’s lawyer when a conflict arises. [See
ABA Model Rule 1.7, comment 35]

6. Securities Lawyer’s Duties Under Sarbanes-Oxley Act

In response to the collapse of several high-flying corporations in 2002, Congress
passed the Sarbanes-Oxley Act. Among other things, the Act instructs the Securities
and Exchange Commission (“SEC”) to make rules for securities lawyers who discover
their clients violating the federal or state securities laws or similar laws. The SEC
did make rules, which are now part of the “law of lawyering” that is covered on
the MPRE. [See 17 C.F.R. §205] The following discussion includes highlights of the
Sarbanes-Oxley rules.

a. Application to “Securities Lawyers”

The rules apply to lawyers who represent an issuer of securities and who
practice before the SEC (“securities lawyers”). This includes not only lawyers
who transact business with the SEC, communicate with it, or represent a securi-
ties issuer before it, but also lawyers who give advice about a document that
will be filed with the SEC or advice about whether information must be filed
with the SEC.

b. Reporting Requirement
If a securities lawyer becomes aware of credible evidence that her client
is materially violating a federal or state securities law, she must report the
evidence to her client’s chief legal officer (“CLO”) or chief executive officer.
132. PROFESSIONAL RESPONSIBILITY

The same reporting duty applies to credible evidence that one of her client’s
personnel has breached a fiduciary duty under federal or state law or has
committed a “similar material violation” of federal or state law.

c. Investigation by CLO
The CLO must investigate the situation to determine whether a violation
occurred. Alternatively, the CLO can turn the matter over to a legal compliance
committee, but for purposes of this discussion, that complication will be ignored.

d. If Violation Found—“Appropriate Response” Required

If the CLO concludes that no violation occurred, he must report that conclusion
back to the securities lawyer. If the CLO concludes that a violation did occur, is
occurring, or is about to occur, the CLO must take all reasonable steps to get the
client to make an “appropriate response.” Roughly stated, that means that the
client must stop or remedy the violation and make sure that it does not happen
again. The CLO must report those results to the securities lawyer.

e. When Appropriate Response Not Taken

If the securities lawyer believes that the CLO did not achieve an appropriate
response from the client, the securities lawyer must report the evidence to one
of the following: (1) the client’s whole board of directors, (2) the audit committee
of the board, or (3) a committee made up of outside directors (directors who
are not beholden to the client). Notice that the Sarbanes-Oxley reporting rule is
mandatory, unlike ABA Model Rule 1.13(b), which gives the lawyer some discre-
tion about how to proceed (see 3., supra).

f. Revealing Confidential Information

The securities lawyer may reveal to the SEC, without the client’s consent, any
confidential information that is reasonably necessary to: (1) stop the client from
committing a violation that will cause substantial financial injury to the client or
its investors; (2) rectify such a financial injury if the lawyer’s services were used
to further the violation; or (3) prevent the client from committing or suborning
perjury in an SEC matter or lying in any matter within the jurisdiction of any
branch of the federal government.

g. Compliance with Rules

A securities lawyer who violates the Sarbanes-Oxley rules can be disciplined by
the SEC, but a securities lawyer who complies with the Sarbanes-Oxley rules
cannot be held civilly liable for doing so and cannot be disciplined under any
inconsistent state rule.

h. Action When Securities Lawyer Is Fired

If a securities lawyer is fired for complying with the Sarbanes-Oxley rules, she
may report the firing to the client’s board of directors (thus setting up the client
for an expensive wrongful termination suit).
 PROFESSIONAL RESPONSIBILITY 133.

IX. SAFEKEEPING FUNDS AND OTHER PROPERTY

A. GENERAL DUTY
When money or property belonging to a client comes into the lawyer’s hands, the lawyer
must not steal it, borrow it, or put it to the lawyer’s own use. Furthermore, the lawyer
must keep it separated from the lawyer’s own money and property. A lawyer is subject to
discipline for commingling the client’s money or property with the lawyer’s own personal
or business funds or property. [ABA Model Rule 1.15; and see Restatement §44—lawyer
safeguarding client’s property acts as a fiduciary and is subject to civil liability for failure
to safeguard such property]

B. SAFEGUARDING PROPERTY
When the lawyer comes into possession of property (other than money) to be held on a
client’s behalf, the lawyer must identify it as belonging to the client and must put it in a
safe place. [ABA Model Rule 1.15(a)] For small items, most lawyers use a bank safe deposit
box. Lawyers are required to hold the property of others with the care required of a
professional fiduciary. [ABA Model Rule 1.15, comment 1] Accordingly, a lawyer cannot
use the client’s property for her own purposes, and must promptly take steps necessary
to safeguard the client’s property as are appropriate to the circumstances.

EXAMPLE
Lawyer L represented horse breeder B in negotiating a contract whereby B exchanged
two valuable horses for a lakeside cottage. While the transfer was pending, B turned the
two horses over to L for safekeeping. L arranged for them to be boarded at a certified
and bonded stable. L’s conduct was proper.

C. CLIENT TRUST FUND ACCOUNT

All money that a lawyer receives in connection with a representation (whether from the
client or a third party) must promptly be placed in a client trust fund account, separate
from the lawyer’s own personal and business accounts. [ABA Model Rule 1.15(a)]
1. Type of Account
The client trust fund account must be located in the state where the lawyer practices,
unless the client or third person consents to having it elsewhere. [ABA Model Rule
1.15(a)] Ordinarily, a lawyer must never put her own money or her firm’s money into the
client trust account, but she may put some of her own money into that account for the
sole purpose of paying bank service charges. [ABA Model Rule 1.15(b)]
a. Large Sum Held for Long Period
If a lawyer is entrusted with a large sum to hold for a long period, the lawyer
should put it into a separate, interest-bearing account, and the interest it earns
will belong to the client. [See Restatement §44, comment d] A separate account
is recommended when the lawyer is administering estate funds or the like. [ABA
Model Rule 1.15, comment 1]
134. PROFESSIONAL RESPONSIBILITY

b. Small Sums
Usually, lawyers are entrusted with only relatively small sums to hold for relatively
short periods of time. The lawyer should put these sums into a pooled client trust
account; the account is pooled in the sense that it holds funds entrusted to the
lawyer by a variety of different clients. The pooled client trust account is typically
a checking account that earns interest. If each client’s small sum were put in
an individual account, the amount of interest it could earn would be less than
the bank’s service charge for maintaining the individual account. The 50 states
devised Interest On Lawyer Trust Account (“IOLTA”) programs. If a client entrusts
a lawyer with a sum that is too small to earn any net interest, the lawyer must put
it into a pooled checking account that earns interest. After the bank deducts its
service charges from the interest, the bank sends the remaining interest to the
state bar or to a legal foundation, which uses the interest to fund charitable legal
programs. In short, an IOLTA program creates an asset that would otherwise not
exist, and it then puts that asset to a public use. In Brown v. Legal Foundation of
Washington, 538 U.S. 216 (2003), a sharply divided Supreme Court upheld the
constitutionality of IOLTA programs, holding that the individual clients whose
interest was “taken” for “public use” were not entitled to “just compensation”
because they did not lose anything they would otherwise have had.

2. Funds that Must Be Placed in Account

a. Money Advanced by Client to Cover Costs and Expenses

When the client entrusts the lawyer with money to pay costs and expenses not
yet incurred, the advance must be put into the lawyer’s client trust fund account.
[ABA Model Rule 1.15] The lawyer can then pay the expenses with checks drawn
on the account.

b. Legal Fees Advanced by Client

Sometimes a client entrusts the lawyer with an advance against legal fees that
the lawyer has not yet earned. Such an advance must be put into the client
trust account. That is because a lawyer must refund to the client any unearned,
prepaid legal fees at the close of the representation, and an irresponsible lawyer
could harm a client by frittering away a fee advance. When a lawyer holds a
fee advance in her client trust account, she may make withdrawals as fees are
earned if there is no existing dispute about the lawyer’s right to do so. To make
sure there is no dispute, cautious lawyers send the client an itemized bill before
withdrawing legal fees from the trust account. [See Restatement §44, comment f]

c. Disputed Funds
If there is a dispute over funds (between the lawyer and the client, or between
the client and some third person), the lawyer must keep the disputed portion
in the client trust account until the dispute is resolved. [ABA Model Rule 1.15(e)]
This is further discussed in E., infra.
 PROFESSIONAL RESPONSIBILITY 135.

D. DUTY TO NOTIFY, KEEP RECORDS, RENDER ACCOUNTINGS, AND PAY

OVER PROMPTLY
A lawyer has the following additional duties respecting a client’s money or property:

1. The lawyer must notify the client promptly when a third party turns over money or
property to the lawyer to hold on the client’s behalf;

2. The lawyer must keep complete, accurate, and up-to-date records of all money
and property held on behalf of the client. These records must be kept in accordance
with generally accepted accounting practice, and they must be preserved for five
years after the termination of the representation;

3. The lawyer must render appropriate accountings of all money and property held on
behalf of the client; and

4. When the time comes to pay over money or deliver property to which the client or a
third party is entitled, the lawyer must do so promptly.

[ABA Model Rule 1.15(a), (d)]

E. DISPUTED PROPERTY
When a lawyer is in possession of property in which two or more persons (one of
whom may be the lawyer) claim interests, the disputed portion of the property must
be kept separate by the lawyer until the dispute is resolved. The lawyer must promptly
distribute all portions of the property as to which the interests are not in dispute. [ABA
Model Rule 1.15(e)]

1. Funds in Which Both Client and Lawyer Have an Interest

A lawyer sometimes receives funds from a third party that are to be used, in part, to
pay the lawyer’s fee. The lawyer must place such funds in a client trust account until
there is an accounting and severance of the respective interests of the client and the
lawyer. If the client disputes the amount that is due to the lawyer, then the disputed
portion must be kept in the client trust account until the dispute is resolved. [ABA
Model Rule 1.15(e)]

EXAMPLE
Attorney A agreed to represent P as plaintiff in a products liability case. P agreed
to pay A $75 per hour for her work, and P agreed that the fee could be deducted
from the proceeds of the suit before remittance to P. After expending 100 hours on
the case, A arranged a settlement of $50,000, and the defendant sent A a check
in that amount. A deposited the check in her client trust fund account and notified
P that it had arrived. The same day, A sent P a statement for services showing 100
hours of work and a total fee of $7,500. P protested the fee, saying that she would
136. PROFESSIONAL RESPONSIBILITY

pay $5,000, but not a cent more. Furthermore, P demanded immediate payment of
the entire $50,000. A then sent P $42,500, transferred $5,000 to her personal bank
account, and kept the remaining $2,500 in her client trust fund account. P and A
ultimately submitted their fee dispute to arbitration; when the arbitrator ruled in A’s
favor, she transferred the $2,500 to her personal bank account. A handled the mat-
ter properly. [See Restatement §44, comment f]

2. Funds in Which a Third Party Has an Interest

Sometimes a third party has an interest in funds that come into the lawyer’s
possession on behalf of a client. Statute, common law, or contract may require
the lawyer to protect the third party’s interest against interference by the client;
accordingly, when the third party’s claim is not frivolous, the lawyer must refuse
to surrender the funds to the client until the third party has been paid. However,
a lawyer should not unilaterally presume to arbitrate a dispute between the client
and the third party. If there are substantial grounds for the dispute, the lawyer may
file an interpleader action to have a court resolve the dispute. [ABA Model Rule
1.15, comment 4] The lawyer must promptly distribute any sums that are not in
dispute. [ABA Model Rule 1.15(e)]

EXAMPLE
When attorney A agreed to represent client C in a personal injury case, A and C
made a three-way agreement with C’s physician that A would pay C’s medical bills
out of the proceeds of C’s suit. When C won a $10,000 judgment, he demanded that
the entire sum be immediately paid over to him because of a dispute between C
and the physician over the medical bills. A’s legal and ethical obligation is to hold the
amount of money necessary to pay C’s medical bills until the dispute between C and
the physician is resolved.

X. COMMUNICATIONS ABOUT LEGAL SERVICES

A. CONTENT-BASED RULES FOR ADVERTISING AND OTHER

COMMUNICATIONS
The ABA Model Rules include various guidelines and restrictions concerning communica-
tions about the lawyer and the lawyer’s services.

1. Basic Rule—Communications Must Be True and Not Misleading

A lawyer is subject to discipline for any type of communication about the lawyer
or the lawyer’s services that is false or misleading. [ABA Model Rule 7.1] This rule
applies to all kinds of communications, including advertisements, personal commu-
nications, office signs, professional cards, professional announcements, letterheads,
brochures, letters sent by post or e-mail, and recorded telephone messages. [See
ABA Model Rule 7.1, comment 1]
 PROFESSIONAL RESPONSIBILITY 137.

a. Types of False or Misleading Communications

1) Outright Falsehoods
Obviously, a lawyer must not use a communication that is simply false.

EXAMPLE
Attorney A’s office letterhead lists him as “Trial Counsel—ExxonMobil Cor-
poration.” Indeed, A used to do trial work in the in-house law department of
ExxonMobil, but no member of that department carries the title “Trial Coun-
sel”; moreover, A left ExxonMobil 18 months ago. The listing is an outright
falsehood.

2) Omitted Facts
A communication can be true but misleading if it omits a fact that is neces-
sary to make the communication as a whole not materially misleading. [ABA
Model Rule 7.1, comment 2]

EXAMPLE
Lawyer L’s display advertisement in the telephone book Yellow Pages in-
cludes the phrase “Yale Law School—1987.” Indeed, L did attend a two-week
summer program at Yale Law School in 1987, but he earned his law degree
at a school of considerably less distinction. The statement is misleading.

3) Unfounded Conclusions
A truthful communication can be misleading if there is a substantial likeli-
hood that it will lead a reasonable person to formulate a specific conclusion
about the lawyer or the lawyer’s services for which there is no reasonable
factual foundation. [Id.]

EXAMPLE
Lawyer L, who has no medical training, specializes in defending lawyers
against medical malpractice claims. His billboard advertisement describes
him as the “The Juris DOCTOR,” states that he has “decades of experience
in health care,” and includes a photo of him in scrubs, wearing a stetho-
scope. The commercial is misleading if it would lead a reasonable person
to believe L is a physician.

4) Unjustified Expectations
A true communication about a lawyer’s accomplishments in past cases is
misleading if it could make a reasonable person think that the lawyer could
do as well in a similar case, without regard to the facts and law in that case.
[ABA Model Rule 7.1, comment 3]
138. PROFESSIONAL RESPONSIBILITY

EXAMPLE
Attorney A won jury verdicts in excess of $500,000 in the last three asbes-
tos cases she took to trial. Her television advertisement includes that truth-
ful statement without explaining that the recovery in asbestos cases varies
dramatically, depending on the precise facts surrounding the plaintiff’s
exposure to asbestos. A’s statement is misleading.

5) Unsubstantiated Comparisons
An unsubstantiated comparison of a lawyer’s services or fees with those of
other lawyers is misleading if it could make a reasonable person think that
it can be substantiated. [Id.]

EXAMPLE
Lawyer L advertises that her fees for estate planning services are “15%
lower than the prevailing rate in Fairmont County.” If L cannot substantiate
that statement with hard data, she is subject to discipline.

b. Including a Disclaimer
Depending on the circumstances, the inclusion of an appropriate disclaimer
or other qualifying language may preclude a finding that the advertisement
or other communication is misleading to the public. [ABA Model Rule 7.1,
comment 3]

2. Required and Permitted Information

ABA Model Rule 7.2(a) gives lawyers broad latitude in advertising or otherwise
communicating about their services in a true and nonmisleading manner. They may
communicate through any type of media.

a. Identification of Advertiser
Every advertisement or other communication about the lawyer’s or firm’s
services must include the name and contact information (website address,
telephone number, e-mail address, or physical office location) of at least one
lawyer or law firm that is responsible for its content. [ABA Model Rule 7.2(d)]

b. Generally Permitted Information

The following are among the types of information that a lawyer may publicly
disseminate: (1) information concerning the name of the lawyer or her firm, and
the lawyer’s or firm’s address, e-mail address, website, and telephone number;
(2) the kinds of services the lawyer will undertake; (3) the basis on which fees
are determined, including prices for specific services and payment and credit
arrangements; (4) the lawyer’s foreign language ability; (5) the names of refer-
ences; and (6) other information that might invite the attention of persons
seeking legal assistance. [ABA Model Rule 7.2, comment 1]
 PROFESSIONAL RESPONSIBILITY 139.

1) Consent of Named Clients

If a lawyer wishes to identify some regular clients in an advertisement, the
lawyer must first obtain the clients’ consent. [Id.]

3. Firm Names, Letterheads, and Other Professional Designations

Like all communications concerning a lawyer’s services, law firm names and other
professional designations must not be false or misleading.

a. Current, Deceased, and Retired Partners

A private law partnership may be designated by the names of one or more of its
current members. “Member” is generally interpreted to mean a partner or share-
holder, because it is inferred that such persons carry the liabilities and respon-
sibilities for the firm’s obligations. When partners die or retire, their names may
be carried over to successor partnerships. For example, a law partnership may
properly continue to practice under the name “X, Y, & Z,” even though lawyer X
has died. [ABA Model Rule 7.1, comment 5; ABA Informal Op. 85-1511 (1985)]

1) Misleading—Non-Associated Lawyers and Nonlawyers

A law firm name is misleading if it includes the name of (or otherwise
implies a connection with): (1) a deceased lawyer who was not a former
member of the firm, (2) the name of any lawyer who is not associated with
the firm or predecessor firm, or (3) the name of a nonlawyer. [ABA Model
Rule 7.1, comment 5]

b. Using Names of Lawyers Who Have Entered Public Service

A private law firm must not use the name of a lawyer who holds public office
(either as part of the firm name or in communications on the firm’s behalf)
during any substantial period in which the lawyer is not regularly and actively
practicing with the firm. [ABA Model Rule 7.1, comment 8]

EXAMPLE
Attorney Tzao took an indefinite leave of absence from the Tzao, Dean & Gold-
berg firm to serve as a commissioner on the Federal Communications Commis-
sion. The firm must remove Tzao’s name from the firm name until he returns to
regular, active practice.

c. Must Not Imply Connection with Public or Charitable Organization

Trade names (e.g., “The Bulldog Law Firm”)—even ones that do not include
the names of one or more partners—are permitted, provided the name is not
misleading and does not imply a connection with a governmental agency or
with a public or charitable legal services organization. If a firm name uses a
trade name that includes a geographical name (e.g., Greater Chicago Legal
Clinic), a disclaimer explaining that it is not a public legal aid organization may
be required to avoid a misleading implication. [ABA Model Rule 7.1, comment 5]
140. PROFESSIONAL RESPONSIBILITY

d. False Indications of Partnership

Lawyers must not imply that they are partners or are practicing together as one
law firm unless they really are. [ABA Model Rule 7.1, comment 7]

EXAMPLE
Attorneys A and B share office space, secretarial services, and a common law
library. They frequently refer cases to one another, and they continually consult
each other on difficult legal questions. The sign on their office door says: “Of-
fices of A and B, Attorneys at Law.” The sign is not proper; it implies that they
are in partnership when they are not.

1) Associated and Affiliated Law Firms

Two law firms may hold themselves out to the public as being “associated”
or “affiliated” if they have a close, regular, ongoing relationship and if the
designation is not misleading. But using such a designation has a signifi-
cant drawback—ordinarily the two firms would be treated as a single unit
for conflict of interest purposes. [ABA Formal Op. 85-351 (1985)]

EXAMPLE
The ABC firm practices business law in Denver. For many years it has
worked regularly and closely with the XYZ firm, which practices patent
law in Washington, D.C. If the ABC firm letterhead lists the XYZ firm as its
Washington, D.C., affiliate in patent matters, then any conflict of interest
that would disqualify the XYZ firm will ordinarily also disqualify the ABC
firm.

e. Multistate Firms
A law firm that has offices in more than one jurisdiction may use the same name,
Internet address, or other professional designation in each jurisdiction. [ABA
Model Rule 7.1, comment 6]

4. Identifying Fields of Practice

A lawyer may communicate that she does or does not practice in particular fields of
law. Additionally, the lawyer is permitted to state that she “concentrates in,” “special-
izes in,” or is a “specialist” in particular fields based on the lawyer’s experience,
specialized training, or education, as long as such communications are not false
or misleading. However, a lawyer must not state or imply that she is certified as
a specialist in a particular field of law, unless: (1) the lawyer has in fact been certi-
fied as a specialist by an organization that has been approved by the ABA or by an
appropriate state authority; and (2) the name of the certifying organization is clearly
identified in the communication. [ABA Model Rule 7.2(c) and comment 9]
 PROFESSIONAL RESPONSIBILITY 141.

a. Patent and Admiralty Lawyers

Patent and admiralty lawyers have traditionally been accorded special treat-
ment. A lawyer who is admitted to practice before the United States Patent
and Trademark Office may use the designation “Patent Attorney,” or something
similar. A lawyer who is engaged in admiralty practice may use the designation
“Proctor in Admiralty,” or something similar. A lawyer’s communications about
these practice areas are not prohibited by the rule above. [ABA Model Rule 7.2,
comment 10]

B. RECOMMENDATIONS
A communication about a lawyer’s services is a “recommendation” if it endorses or
vouches for the lawyer’s credentials, abilities, competence, character, or other profes-
sional qualities. Subject to the exceptions below, a lawyer must not compensate, give
anything of value, or promise to give anything of value to a person for recommending
the lawyer’s services. Note: Directory listings or group advertisements listing lawyers by
practice area, without any further information, do not constitute prohibited recommenda-
tions. [ABA Model Rule 7.2(b) and comment 2]

1. Exceptions to General Rule

a. Paying for Advertising and Other Services

A lawyer may pay the reasonable costs of permitted advertisements (e.g.,
broadcast airtime, directory listings, or newspaper ads). Additionally, a lawyer
may pay the usual charges of: (1) a legal service plan (see D., infra), (2) a not-for-
profit lawyer referral service, or (3) a qualified lawyer referral service. “Qualified”
means that the service has been approved by an appropriate regulatory
authority. A lawyer who accepts assignments or referrals from a legal services
plan or lawyer referral service must ensure that the organization’s communica-
tions comply with the lawyer’s obligations (that is, are not false or misleading).
[ABA Model Rule 7.2(b)(1), (2) and comment 7]

EXAMPLE
The A, B & C firm seeks to increase its client base. The firm may hire and pay a
media consultant to design some newspaper advertisements, and it may pay the
newspaper for the advertising space. The firm may also participate in a prepaid
legal service plan that advertises to obtain new members. Furthermore, some of
the lawyers in the firm are listed with the nonprofit lawyer referral service run by
the local county bar association; when those lawyers obtain clients through the
referral service, they may pay the referral fees charged by the service.

1) Paying Others to Generate Client Leads

“Lead generators” provide consumers with matching, referral, and direc-
tory services (e.g., a consumer goes to a website, selects a type of legal
142. PROFESSIONAL RESPONSIBILITY

problem, and is provided with a list of lawyers who provide that service
and the ability to select and contact one of those lawyers). A lawyer may
pay others to generate client leads as long as the lead generator does
not recommend the lawyer and the lead generator’s communications are
not false or misleading. A communication by the lead generator is false
or misleading if it creates a reasonable impression that: (1) it is recom-
mending the lawyer; (2) it has analyzed the person’s legal problems when
determining whether to refer the person to the lawyer; or (3) it is making
the referral without any payment from the lawyer. [ABA Model Rule 7.2,
comment 5]

b. Purchase of a Law Practice

Of course, the lawyer may purchase a law practice (see I.J., supra) even though
the seller is, in a sense, recommending the purchasing lawyer to her clients.
[ABA Model Rule 7.2(b)(3)]

c. Reciprocal Referral Agreements

Under certain circumstances, a lawyer is permitted to set up a reciprocal referral
agreement with another lawyer or with a nonlawyer professional—i.e., “I will
refer potential clients, patients, or customers to you if you will do likewise for
me.” [ABA Model Rule 7.2(b)(4)] “Another lawyer” means a lawyer at a different
firm (the rule does not restrict referrals among members of the same firm). The
term “nonlawyer professional” is not defined, but is generally interpreted as a
person who belongs to a professional body that requires a high level of profi-
ciency and regulates its members (e.g., doctor, accountant, insurance agent).
A reciprocal referral agreement is subject to the following restrictions and
guidance [ABA Model Rule 7.2(b)(4) and comment 8]:

1) The agreement must not be exclusive (i.e., the lawyer must not promise to
refer all potential estate planning clients to his friend F and to no one else).

2) The referred client must be told about the agreement. If the agreement
creates a conflict of interest for either the referring or the receiving lawyer,
then that lawyer must obtain the client’s informed consent, confirmed in
writing, under ABA Model Rule 1.7. (Of course, one must wonder whether a
reciprocal referral agreement invariably creates a conflict because it gives
the referring lawyer a personal financial interest in sending the case to his
referral counterpart rather than to some other lawyer.)

3) The reciprocal agreement must not interfere with the lawyer’s professional
judgment as to making referrals or providing substantive legal services.

4) The agreement “should not” be of indefinite duration and should be

reviewed periodically to make sure it complies with the ABA Model Rules.
 PROFESSIONAL RESPONSIBILITY 143.

d. Nominal Gifts or Gratuities

A lawyer may give a nominal gift or gratuity as an expression of appreciation to
a person who recommended the lawyer or the lawyer’s firm, provided the gift
or gratuity was not intended or reasonably expected to be a form of compen-
sation for recommending the lawyer’s services. Such gifts must not exceed a
token item that would be given for a holiday or in the course of ordinary social
hospitality. A gift is prohibited if offered or given in consideration of any under-
standing that such a gift would be forthcoming or that referrals would be made
or encouraged in the future. [ABA Model Rule 7.2(b)(5)]

C. SOLICITATION
A solicitation is a communication initiated by a lawyer or firm that is directed to a
specific person the lawyer knows or reasonably should know needs legal services in a
particular matter, and that offers to provide, or can reasonably be understood as offering
to provide, legal services for that matter. However, a communication is not a solicita-
tion if it: (1) is directed to the general public (e.g., through a billboard, website, television
commercial, or Internet banner advertisement); (2) responds to a request for information;
or (3) is automatically generated in response to an Internet search. [ABA Model Rule 7.3(a)
and comment 1]

1. Live Person-to-Person Solicitation Generally Prohibited

Subject to the exceptions below, a lawyer or firm must not, by live person-to-person
contact, solicit professional employment when a significant motive for doing so is
the lawyer’s or firm’s pecuniary gain (i.e., money). “Live person-to-person contact”
means in-person, face-to-face, live telephone, or other real-time visual or auditory
person-to-person communications (e.g., Skype or FaceTime) where the targeted
person is subject to a direct personal encounter without time for reflection. [ABA
Model Rule 7.3(b)]

a. Exception to Prohibition—Significant Motive Is Not Pecuniary Gain

Offers to provide free legal services are generally permissible. Furthermore,
certain political or ideological solicitation (e.g., solicitation on behalf of a civil
rights organization or nonprofit organization) is constitutionally protected. [See
ABA Model Rule 7.3(b) and comment 5]

b. Exceptions to Prohibition—Certain Targets Are Considered Less Vulnerable

Subject to the limitations in 3., below, a lawyer or firm is generally not prohibited
from initiating live person-to-person contact with (1) other lawyers; (2) persons
with whom the lawyer or firm has a familial, close personal, or prior profes-
sional or business relationship (including current and former clients); or (3)
routine business users of the type of legal services offered by the lawyer or
firm (e.g., entrepreneurs, small business owners, executives who hire outside
counsel to represent an entity, and any other persons who regularly engage
lawyers for business purposes).
144. PROFESSIONAL RESPONSIBILITY

EXAMPLE
Attorney A prepared an estate plan for client C. A did no further work for C. Two
years later, the state repealed its inheritance tax, thus creating a much more
advantageous way for C to dispose of her assets on death. A may telephone C,
advising C to have her estate plan revised, and A may do the necessary work if
C asks her to do so.

2. Written, Recorded, or Electronic Solicitation Generally Permitted

Generally, a lawyer is not prohibited from sending truthful, nondeceptive communi-
cations (via mail, e-mail, text message, chat room message, etc.) to persons known
to face a specific legal problem. These types of communications can be easily disre-
garded by the recipient and do not constitute live person-to-person contact. [ABA
Model Rule 7.3, comment 2]

3. Circumstances Rendering All Contacts Impermissible

A lawyer is prohibited from soliciting professional employment, regardless of what
method is used or who the target is, if [ABA Model Rule 7.3(c)]:

a. The target of the solicitation has made known to the lawyer that she does not
want to be solicited by the lawyer; or

b. The solicitation involves coercion, duress, or harassment.

EXAMPLE
Lawyer L obtained a mailing list of all persons who used a certain prescription drug
that allegedly caused grave side effects. L sent personal letters to each person, of-
fering to represent them for a fee in litigation against the drug manufacturer. C, one
of the recipients of L’s letters, telephoned L’s office and told her that she did not want
to sue anybody and did not want to hear further from L. L failed to remove C from
the mailing list, so C received a series of follow-up letters, each urging C to join in
litigation against the drug manufacturer. L is subject to discipline.

4. Communications Authorized by Law or Court Order

These rules do not prohibit communications authorized by law or ordered by a court
or other tribunal (e.g., in class action litigation, a notice to potential members of the
class). [ABA Model Rule 7.3(d)]

5. Use of Agents to Solicit

Recall that a lawyer is always prohibited from using an agent to do that which the
lawyer must not do, e.g., violate a law or disciplinary rule. Thus, a lawyer must not
use an agent (sometimes called a “runner” or “capper”) to contact prospective
clients in a manner that would violate the Rules of Professional Conduct.
 PROFESSIONAL RESPONSIBILITY 145.

EXAMPLES
1) Lawyer L hired R to be a “claims investigator.” R’s work involved checking accident
and crime reports at the local police station and then personally contacting those in-
volved to “advise them of their legal rights.” L furnishes R with copies of her standard
form retainer agreement and instructs R to sign up clients when possible. L is subject
to discipline.
2) Attorney A has a reciprocal referral arrangement with a “debt consolidation” com-
pany. Employees of the company initiate personal, face-to-face conversations with
debtors and advise them about loans and ways to get out of debt. If it appears that a
debtor needs legal assistance, the company employee refers the debtor to A. In return,
when one of A’s clients needs help getting a loan or managing debts, A refers the cli-
ent to the company. A is subject to discipline because he is using the debt consolida-
tion company to initiate personal, face-to-face communications with potential clients.

D. GROUP AND PREPAID LEGAL SERVICE PLANS

Group or prepaid legal service plans typically are part of an employee benefit plan and
bear some resemblance to health insurance plans. Participants typically pay a monthly
premium, in return for which they may consult a plan-authorized lawyer and obtain legal
services for a low or no cost. Such plans vary widely as to the services provided, ranging
from a brief consultation to full representation, and as to the areas covered, ranging from
estate planning to divorce, to civil or (less commonly) criminal actions.

1. Lawyer May Personally Contact Sponsoring Organizations

A lawyer or firm may personally contact representatives of groups that might wish
to adopt a legal service plan for its members, beneficiaries, etc. This is more akin
to advertising than solicitation because it is not directed at people seeking legal
services for themselves; the representatives are acting in a fiduciary capacity and
seeking legal services for their members (who will later choose whether to become a
client of the lawyer or firm). [ABA Model Rule 7.3, comment 7]

2. Plan May Personally Contact Potential Members

Lawyers are permitted to participate in a group or prepaid legal service plan, even
though the plan uses live person-to-person contacts to enroll memberships or sell
subscriptions, provided that: (1) the personal contact is not undertaken by the
lawyer themselves; and (2) the plan only contacts persons who are not known to
need specific legal services in a particular matter covered by the plan (as this does
not fall within the definition of solicitation). [ABA Model Rule 7.3(e) and comment 9]

EXAMPLE
The X, Y & Z law firm learns that the Lincoln Teachers’ Association wants to form a
group legal service program for schoolteachers. In such a program, the association
would contract with a local law firm to provide a specified yearly amount of legal
146. PROFESSIONAL RESPONSIBILITY

service to each teacher subscriber. The X, Y & Z firm may initiate live person-to-
person contact with the association to present a proposed plan. Furthermore, if the
association ends up hiring the X, Y & Z firm, it is proper for the association (but not
the X, Y & Z law firm) to make live person-to-person contact with schoolteachers to
urge them to subscribe to the plan.

a. Participating Lawyer Must Not Be Owner or Director

A lawyer must not participate in the legal service plan if the lawyer owns or
directs the organization that operates the plan.

3. Must Assure Compliance With Advertising and Solicitation Rules

A lawyer who participates in a legal service plan must “reasonably assure” that the
plan sponsors are in compliance with the advertising and solicitation rules (e.g., must
not advertise in a false or misleading manner). [ABA Model Rule 7.3, comment 9]

E. GOVERNMENT REGULATION OF COMMUNICATIONS ABOUT LEGAL

SERVICES
The Supreme Court has recognized lawyer advertising as commercial speech protected
by the First and Fourteenth Amendments, holding that a state may adopt reasonable
regulations to insure that lawyer advertising is not false or misleading, but may not flatly
prohibit all lawyer advertising. [Bates v. State Bar of Arizona, 433 U.S. 350 (1977)]

1. False and Misleading Ads and In-Person Solicitation May Be Banned

A state may flatly prohibit lawyer advertising that is false or misleading. [In re RMJ,
455 U.S. 191 (1982)] Similarly, a state may adopt prophylactic rules to forbid in-person
solicitation for profit in circumstances that are likely to result in overreaching or
misleading a layperson. [Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978)] In
practice, misleading communications and in-person solicitation are regulated rather
than completely banned.

2. Disclosure Requirements for Misleading Communications—Rational Basis Test

To prevent commercial speech from misleading consumers, the government may
require commercial advertisers to make certain factual disclosures if such a require-
ment is: (1) not unduly burdensome, and (2) reasonably related to the state’s interest
in preventing deception. [Zauderer v. Office of Disciplinary Counsel of Supreme
Court of Ohio, 471 U.S. 626 (1985)]

EXAMPLE
Attorneys who provide bankruptcy assistance to consumer debtors (“debt relief agen-
cies”) may be required to include in their advertisements certain information—e.g.,
statements identifying themselves as debt relief agencies and disclosing that the
advertised services relate to bankruptcy relief and may result in the debtor’s filing for
bankruptcy. [Milavetz, Gallop & Milavetz, P.A. v. United States, 555 U.S. 229 (2010)]
 PROFESSIONAL RESPONSIBILITY 147.

3. Other Regulation of Truthful, Nondeceptive Communications—Intermediate

Scrutiny
Because attorney advertising is commercial speech, regulation of it is subject to only
intermediate, rather than strict, scrutiny. [Florida Bar v. Went For It, Inc., 515 U.S. 618
(1995)] Thus, this type of commercial speech may be regulated if the government
satisfies a three-prong test:

a. The government must assert a substantial interest in support of its regulation;

b. The government must demonstrate that the restriction on commercial speech

directly and materially advances the interest; and

c. The regulation must be narrowly drawn.

[Florida Bar v. Went For It, Inc., supra—citing Central Hudson Gas & Electric Corp. v.
Public Service Commission of New York, 447 U.S. 557 (1980)]

EXAMPLE
After conducting a two-year study on the effect of lawyer advertising on public opin-
ion, which included surveys and hearings, Florida adopted a rule prohibiting lawyers
from sending any targeted direct-mail solicitations to victims and their relatives for
30 days following an accident or disaster. The United States Supreme Court upheld
the regulation, finding that it met the three-prong test above. The Court found that:
(1) the state has a substantial interest in protecting the privacy and tranquility of its
citizens as well as in protecting the reputation of the legal profession; (2) the stud-
ies show that the public was offended by these solicitations and that the 30-day ban
directly advances the state’s interests; and (3) the regulation is narrowly tailored to
achieve the desired results. [Florida Bar v. Went For It, Inc., supra]

XI. LAWYERS’ DUTIES TO THE PUBLIC AND THE LEGAL SYSTEM

A. PRO BONO PUBLICO SERVICE

Every lawyer has a professional responsibility to provide legal service to people who
cannot pay for it. [ABA Model Rule 6.1] Violating ABA Model Rule 6.1 is not grounds for
professional discipline; Model Rule 6.1 recommends that every lawyer should spend 50
hours per year on pro bono work. A “substantial majority” of those hours should be spent
doing unpaid legal service for poor people or organizations that address the needs of
poor people.

B. COURT APPOINTMENTS
Trial and appellate courts often find it necessary to appoint lawyers to represent indigent
clients and clients with unpopular causes. ABA Model Rule 6.2 provides that a lawyer
must not seek to avoid such an appointment except for good cause. Examples of good
cause are stated below.
148. PROFESSIONAL RESPONSIBILITY

1. Violation of Law or Disciplinary Rule

A lawyer must decline a court appointment if to accept it would require the lawyer to
violate a law or disciplinary rule. [ABA Model Rule 6.2(a)]

EXAMPLE
When attorney A was a deputy public defender, he represented client Q in an ag-
gravated assault case, and he learned a great deal of confidential information about
Q’s life and criminal background. Later, A entered private practice, and the local
court appointed him to defend D, who was charged with the attempted murder of
Q. The confidential information A obtained from Q is highly relevant to the defense
of D. A must therefore decline the appointment to defend D.

2. Unreasonable Financial Burden

A lawyer may seek to be excused from an appointment if to accept it would impose
an unreasonable financial burden on the lawyer. [ABA Model Rule 6.2(b)]

EXAMPLE
The Supreme Court of West Dakota appointed lawyer L to represent D in the appeal
of D’s conviction and death sentence for three murders. The trial of D’s case lasted
13 months and resulted in a trial record in excess of 150,000 pages. To handle the
appeal properly, L would be required to work at least 600 hours. The West Dakota
legislature has set legal fees at a paltry $17 per hour for appellate counsel in death
penalty cases. L is a struggling solo practitioner and will not be able to support his
family if he is required to take that much time away from his regular clients. L may
seek to be excused from the supreme court appointment.

3. Personal Inability to Represent Client Effectively

A lawyer may seek to be excused from a court appointment if the lawyer finds the
client or the cause so repugnant that the lawyer-client relationship would be impaired
or the lawyer could not represent the client effectively. [ABA Model Rule 6.2(c)]

EXAMPLE
The trial court appointed attorney A to defend accused child molester M. As a young
boy, A himself was molested by a similar person, and A finds that he cannot even
look comfortably at M, much less represent him zealously. A may seek to be excused
from the court appointment.

C. LIMITED LEGAL SERVICES PROGRAMS

Some courts and nonprofit organizations have established limited legal services
programs in which lawyers offer “quick advice” to people who can then handle their
own legal problem without further assistance. Examples are programs that show people
 PROFESSIONAL RESPONSIBILITY 149.

how to fill out their own EZ tax forms, legal-advice hotlines, advice-only legal clinics, and
programs that show people how to represent themselves in small claims court. A lawyer-
client relationship exists between the lawyer and the person who obtains the quick
advice, but neither person expects the relationship to continue past the quick-advice
stage. [ABA Model Rule 6.5, comment 1] A lawyer may participate in a quick-advice
program sponsored by a court or nonprofit organization, subject to the following rules.

1. Client Consents to Short-Term, Limited Legal Service

The lawyer must obtain the client’s informed consent to the limited scope of the
relationship. If the lawyer’s quick advice is not enough to set the client on the right
track, the lawyer must advise the client to obtain further legal help. [ABA Model Rule
6.5, comment 2]

2. Applicability of Ethics Rules

In a quick-advice situation, the conflict of interest rules are relaxed somewhat, as
explained in 3., below. However, the remainder of the Rules of Professional Conduct
apply to a quick-advice situation.

EXAMPLE
When attorney A was answering telephone calls on the bar association hotline, she
took a call from a farmer who explained that six months ago he hired a farmhand to
help him. The farmhand insisted on being paid in cash and insisted that the farmer
not withhold any income taxes or pay any Social Security contributions on his behalf.
Based on the farmer’s answers to A’s questions, A concluded that the farmhand was
an employee, not an independent contractor. A then advised the farmer about his
potential tax liability. The farmer’s statements to A are protected by the attorney-
client privilege and the ethical duty of confidentiality; therefore, A must not disclose
the farmer’s confidential information or use it to the farmer’s disadvantage. [See ABA
Model Rules 1.6, 1.9(c)]

3. Conflict of Interest Rules Are Relaxed

A lawyer who participates in a quick-advice program ordinarily has no time to
conduct an ordinary conflict of interest check. Therefore, the general conflicts princi-
ples expressed in Rule 1.7 (current clients) and 1.9 (former clients) do not apply unless
the lawyer actually knows that giving the quick advice creates a conflict of interest.
[ABA Model Rule 6.5(a)(1)] As in other contexts, actual knowledge can be inferred
from the circumstances. [ABA Model Rule 1.0(f)]

4. Imputed Conflict Rule Is Also Relaxed

The rule of imputed conflicts of interest [ABA Model Rule 1.10] is also relaxed in a
quick-advice situation. Therefore, a lawyer may dispense advice in a quick-advice
program unless the lawyer actually knows that he is disqualified from doing so
because of a conflict imputed from another lawyer in his firm. [ABA Model Rule 6.5(a)
150. PROFESSIONAL RESPONSIBILITY

(2)] Conversely, a conflict created by advice a lawyer dispenses in a quick-advice

program will not be imputed to others in the lawyer’s firm. [ABA Model Rule 6.5(b)]

EXAMPLES
1) Lawyer L and partner P are partners in the 300-lawyer firm of R & Q. L participates
in a quick-advice program sponsored by a local court. In that context, L advised
apartment tenant T that she could withhold rent from her landlord Z to pay for repair-
ing a leaking roof that made the apartment uninhabitable. L did not realize that Z
had recently hired L’s partner P to deal with legal issues arising out of the apartment
house in question.
2) In the example above, if L advised T about withholding rent on May 1, and landlord
Z did not hire partner P until July 30, L’s conflict is not imputed to P.

5. Conflicts Rules Apply Fully If Quick Advice Leads to Regular Representation

If a person who has received quick advice from a lawyer then wants to hire that
lawyer to render further service in the matter, the ordinary conflict of interest rules
apply to that further service. [ABA Model Rule 6.5, comment 5]

EXAMPLE
After attorney A dispensed advice to client C in a quick-advice program, C asked to
hire A as his trial counsel in the matter. Before agreeing to render the further service
to C, A should check for conflicts of interest to make sure that neither she nor other
lawyers in her office have a conflict that would disqualify her.

D. MEMBERSHIP IN LEGAL SERVICES ORGANIZATIONS

1. Statement of the Problem
Lawyers are encouraged to support and participate in legal services organizations—
e.g., local legal aid societies that provide free legal assistance to underprivileged
persons in civil matters. An officer or member of such an organization does not have
a lawyer-client relationship with persons served by the organization, but there can
be potential conflicts between the interests of those persons and the interests of the
lawyer’s regular, paying clients. [See ABA Model Rule 6.3, comment 1; and see South
Dakota Op. 88-6 (1988)]

2. General Rule
A lawyer may serve as a director, officer, or member of a legal services organization
(apart from the lawyer’s regular employment) even though the organization serves
persons whose interests are adverse to the lawyer’s regular clients. [ABA Model Rule
6.3] This general rule is, however, subject to the limitations stated below.

a. The lawyer must not knowingly participate in a decision or action of the

organization if doing so would be incompatible with the lawyer’s obligations
 PROFESSIONAL RESPONSIBILITY 151.

to a client under the general conflict of interest rules. [See ABA Model Rules
1.7, 6.3(a)]

b. The lawyer must not knowingly participate in a decision or action of the organi-
zation if doing so would adversely affect the representation of one of the organi-
zation’s clients whose interests are adverse to those of a client of the lawyer.
[See ABA Model Rule 6.3(b)]

EXAMPLE
Lawyer L is a member of the board of directors of the Cuttler County Legal Aid So-
ciety. The board sets guidelines for the kinds of cases the society will and will not
handle. The society’s budget has recently been cut, and the board is forced to revise
the guidelines to eliminate some kinds of service. L is also a partner in the R, S & T
firm, and that firm is outside general counsel to the Cuttler County Apartment Own-
ers Association, a trade association for landlords. One proposal pending before the
Legal Aid Society Board is to eliminate free legal service in landlord-tenant cases. L
must not participate in this decision.

E. LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS

1. Activities that May Harm Client
A lawyer may serve as a director, officer, or member of a law reform group, even
though a reform advocated by the group may harm one of the lawyer’s clients. [See
ABA Model Rule 6.4]

EXAMPLE
Attorney A is a member of the West Carolina Law Revision Commission, a private
organization that drafts and recommends new legislation to the West Carolina Leg-
islature. The commission is now working on new statutes that will revise the West
Carolina law respecting administration of trusts. One of A’s clients is the First Caro-
lina Bank. The bank’s trust operations will become less profitable if the legislature
passes the statutes recommended by the commission. A may work on the trust law
project for the commission, unless doing so would violate the general conflict of
interest rules. [See ABA Model Rule 1.7; ABA Model Rule 6.4, comment 1]

2. Activities that May Benefit Client

When a lawyer is working on a law reform project and is asked to participate in a
decision that could materially benefit one of the lawyer’s clients, the lawyer must
disclose that fact—but the lawyer need not identify the client. [ABA Model Rule 6.4]

EXAMPLE
In the Law Revision Commission example above, suppose that one of the statutes
proposed by the commission will substantially increase trustee fees paid to commer-
152. PROFESSIONAL RESPONSIBILITY

cial banks. Before participating in a decision about that statute, A must disclose to
the other commissioners that she represents a major commercial bank, but she need
not identify which bank.

F. ASSISTING IN JUDICIAL MISCONDUCT

A lawyer is subject to discipline for knowingly assisting a judge or judicial officer in
conduct that violates the Code of Judicial Conduct or other law. [ABA Model Rule 8.4(f)]

EXAMPLE
R graduated from law school and became a member of the bar, but he never practiced
law. Instead, he entered politics and was ultimately elected to a high federal office. When
a drug charge was brought against R’s chief deputy, R met personally with the judge
before whom the case was pending and attempted to convince the judge to dismiss the
charge. [See CJC Rule 2.9—prohibits ex parte communications about a pending matter] R
is subject to discipline.

G. STATEMENTS ABOUT JUDICIAL AND PUBLIC LEGAL OFFICIALS

A lawyer must not make a statement that the lawyer knows is false about the qualifica-
tions or integrity of a judge, hearing officer, or public legal official, or about a candidate
for a judicial or legal office. The same rule applies to statements made with reckless
disregard as to truth or falsity. [ABA Model Rule 8.2(a); Restatement §114]

EXAMPLE
Lawyer K made unfounded accusations in two petitions, asserting that certain appellate
judges were deliberately dishonest in failing to recuse themselves in a case K was han-
dling. Such accusations in court papers constitute criminal contempt that can be summar-
ily punished. The court fined K and referred her to the state bar disciplinary authorities.
[In re Koven, 134 Cal. App. 4th 262 (2005)]

H. LAWYER RUNNING FOR JUDICIAL OFFICE

A lawyer who is running for judicial office must comply with the applicable provisions of
the Code of Judicial Conduct. [ABA Model Rule 8.2(b)]

EXAMPLE
Attorney A was one of two candidates for a vacant superior court judgeship. She person-
ally solicited and accepted campaign contributions from other members of her law firm, a
violation of ABA Code of Judicial Conduct 4.1(A). A is subject to discipline.

I. ABILITY TO INFLUENCE GOVERNMENT OFFICIALS

A lawyer must never state or imply that he has the ability to improperly influence a
government agency or official or to achieve results by means that violate the law or legal
ethics rules. [ABA Model Rule 8.4(e)]
 PROFESSIONAL RESPONSIBILITY 153.

EXAMPLE
Lawyer L is a member of a very politically prominent family. Both his mother and brother
are judges, and his father was once governor of the state. It would be improper for L to
mention his prominent relatives in the course of procuring legal employment, as this im-
plies he has some sort of improper influence with the courts or the government. If a client
mentions L’s relatives, L is obligated to explain that he has no special influence to wield
on the client’s behalf.

J. POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT EMPLOYMENT

A lawyer or firm must not accept a government legal engagement (i.e., employment that a
public official has the power to award) or an appointment by a judge if the lawyer or firm
makes or solicits a political contribution for the purpose of obtaining such employment
or appointment (“pay to play” contributions). [ABA Model Rule 7.6 and comment 1]

1. Prohibited Contributions
This rule does not prohibit all political contributions by lawyers or firms—only
those that would not have been made but for the desire to be considered for the
employment or appointment. The circumstances of the contribution may indicate
its purpose. Contributions that are substantial compared to contributions made by
other lawyers or firms, are made for the benefit of an official who can award such
work, and are followed by an award to the lawyer or firm support an inference that
the contributions were for the purpose of obtaining the work. Other factors, such as
a family or professional relationship with the judge or a desire to further a political,
social, or economic interest, weigh against inferring a prohibited purpose. [ABA
Model Rule 7.6, comment 5]

2. Excluded Employment
Excluded from the ambit of the rule are: (1) uncompensated services; (2) engage-
ments or appointments made on the basis of experience, expertise, qualifications,
and cost, following a process that is free from influence based on political contribu-
tions; and (3) engagements or appointments made on a rotating basis from a list
compiled without regard to political contributions. [ABA Model Rule 7.6, comment 3]

XII. JUDICIAL ETHICS

A. SELECTION, TENURE, AND DISCIPLINE OF JUDGES

1. Federal Judges
Justices of the United States Supreme Court and judges of other Article III federal
courts are appointed by the President with the advice and consent of the Senate.
They hold office for life during good behavior. [U.S. Const. art. III, §1] A federal judge
can be removed from office by impeachment and can be disciplined in less drastic
ways by a committee of federal judges. [U.S. Const. art. II, §4; 28 U.S.C. §§351 - 363]
154. PROFESSIONAL RESPONSIBILITY

Federal judges generally are governed by the Code of Conduct for United States
Judges, which is based largely on the ABA Model Code of Judicial Conduct. Justices
of the United States Supreme Court, however, have asserted that they are not bound
by the Code of Conduct for United States Judges or the ABA Model Code of Judicial
Conduct. [See Cheney v. United States District Court, 541 U.S. 913 (2004)—Scalia, J.]

2. State Judges
The constitutions of most states specify how judges are to be selected. In some
states, judges are appointed by the governor or the state legislature, while in
others they are elected by the voters. In still other states, judges are initially
appointed and later retained or rejected by the voters. State judges can be
removed from office or otherwise disciplined in accordance with state constitutional
and statutory provisions.

3. Code of Judicial Conduct

The ABA has provided standards for judicial conduct since 1924. These materials
discuss the ABA’s Model Code of Judicial Conduct (“CJC”).

a. Adoption of the CJC

The CJC becomes binding on the judges in a jurisdiction when it is adopted
(sometimes with significant amendments) by the appropriate authority in that
jurisdiction. [See, e.g., California Code of Judicial Ethics]

b. Who Is Subject to the CJC?

Where adopted, the CJC applies to all persons who perform judicial functions,
including magistrates, court commissioners, referees, and special masters. [CJC,
Application] Retired judges, part-time judges, and pro tempore part-time judges
are exempted from some provisions of the CJC, as explained in F., below.

c. Format of the CJC

The CJC contains four Canons, each of which encompasses several numbered
Rules. The Canons state overarching principles of judicial ethics that all judges
must follow. Also, the Canons guide the interpretation of the Rules. The Rules
are rules of reason, to be applied in a manner that is consistent with the law
(statutory, constitutional, and decisional). Comments accompany the Rules. The
Comments set forth aspirational goals for judges and also provide guidance
regarding the meaning and application of the Rules.

B. PROMOTION OF JUDICIAL INTEGRITY AND AVOIDANCE OF

APPEARANCE OF IMPROPRIETY
The CJC requires a judge to uphold and promote the independence, integrity, and impar-
tiality of the judiciary and avoid both actual impropriety and the appearance of impro-
priety. [CJC Canon 1]
 PROFESSIONAL RESPONSIBILITY 155.

1. Compliance with Law and Promotion of Public Confidence in the Judiciary

A judge must comply with the law (including the CJC). [CJC Rule 1.1] A judge must
avoid even the appearance of impropriety. At all times a judge must act so as to
promote public confidence in the independence, integrity, and impartiality of the
judiciary. [CJC Rule 1.2]

EXAMPLES
1) Judge R discovered his estranged wife in an automobile with another man. The
judge broke the car window (causing the other man to be cut with broken glass)
and slapped his estranged wife. Judge R is subject to discipline, even though his
conduct was unconnected with his judicial duties. [See In re Roth, 645 P.2d 1064
(Or. 1982)]
2) While driving under the influence of alcohol, Judge L ran a traffic signal and vio-
lated other traffic laws. Judge L is subject to discipline. [See Matter of Lawson, 590
A.2d 1132 (N.J. 1991)]

2. Test for Appearance of Impropriety

An “appearance of impropriety” arises when a judge’s conduct would create a
reasonable perception that she has violated the CJC or acted in some other manner
that reflects adversely on her honesty, impartiality, temperament, or fitness as a
judge. [CJC Rule 1.2, comment 5]

3. Community Outreach
To promote public understanding of and confidence in the administration of justice, a
judge should initiate and participate in community outreach activities. [CJC Rule 1.2,
comment 6]

4. Abuse of Judicial Prestige

A judge must not abuse, or permit others to abuse, the prestige of her office to
advance her personal or economic interests or those of others. [CJC Rule 1.3]

a. References and Recommendations

Based on personal knowledge, a judge may act as a reference or provide a
recommendation for someone. Such a communication may be on official letter-
head if: (1) the judge indicates that the reference is personal; and (2) there is
no likelihood that use of the letterhead would reasonably be perceived as an
attempt to use the judicial office to exert pressure. [CJC Rule 1.3, comment 2]

EXAMPLES
1) When Judge B was stopped for a routine traffic violation, he imperiously in-
formed the traffic officer: “I am a judge in this town, young man, and I don’t take
kindly to being stopped for petty reasons!” Judge B is subject to discipline.
156. PROFESSIONAL RESPONSIBILITY

2) Judge C used her official court stationery when writing to a building contrac-
tor with whom she was having a personal contract dispute. Judge C is subject
to discipline.
3) When Judge D’s teenage daughter was charged with shoplifting, Judge D
called Judge E, to whom the daughter’s case was assigned. D said: “E, as a
fellow judge, I want to tell you that my little girl is a good kid who deserves a
break.” Judge D is subject to discipline.
4) Judge F writes materials and gives lectures for a proprietary continuing legal
education company. Judge F should retain control over the company’s adver-
tisements of his materials and lectures to avoid exploitation of his judicial office.
[CJC Rule 1.3, comment 4]

C. IMPARTIAL, COMPETENT, AND DILIGENT PERFORMANCE OF JUDICIAL

DUTIES
The CJC requires a judge to perform the duties of judicial office impartially, competently,
and diligently. [CJC Canon 2]

1. Judicial Duties—In General

Judicial duties include all the duties of the judge’s office that are prescribed by law.
Judicial duties take precedence over all of the judge’s other activities, including
personal and nonjudicial activities. [CJC Rule 2.1]

EXAMPLE
Judge P’s elderly, infirm sister needs a custodian to look after her personal and fi-
nancial affairs. Judge P should not undertake this responsibility if it will interfere with
the proper performance of her judicial duties.

2. Hearing and Deciding Matters Assigned

A judge must hear and decide all matters assigned to her, except those in which
disqualification is required. [CJC Rule 2.7] Disqualification should not be used as a
tool to avoid cases that present difficult, controversial, or unpopular issues. [CJC Rule
2.7, comment 1]

3. Impartiality and Fairness

A judge must uphold and apply the law, and must perform her duties fairly and
impartially. [CJC Rule 2.2]

4. External Influences on Judicial Conduct

Public clamor or fear of criticism must not sway a judge. Family, social, political, or
financial interests must not influence a judge’s conduct or judgment. A judge may
not convey, or allow others to convey, the impression that anyone is in a position to
influence the judge. [CJC Rule 2.4]
 PROFESSIONAL RESPONSIBILITY 157.

5. Competence, Diligence, and Cooperation

A judge must perform her judicial and administrative duties competently and
diligently. [CJC Rule 2.5(A)] “Competence” requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary to perform the judge’s respon-
sibilities. [CJC Rule 2.5, comment 1] To accomplish prompt disposition of the court’s
business, a judge must: (1) devote adequate time to her duties; (2) be punctual in
attending court and expeditious in determining matters submitted to her; and (3)
take reasonable measures to ensure that court officials, litigants, and attorneys
cooperate in this regard. [CJC Rule 2.5, comment 3] Also, a judge must cooperate
with other judges and court officials in the administration of court business. [CJC
Rule 2.5(B)]

6. Ensuring Right to Be Heard

A judge must allow every person with a legal interest in a proceeding the right to
be heard according to law. Although a judge may encourage settlements, he must
not act so as to coerce a party into settlement. It is important to keep in mind the
possible effects of a judge’s participation in settlement talks, i.e., the effects on the
judge’s views of the case as well as on the parties’ perceptions if the judge retains
the case following unsuccessful negotiations. [CJC Rule 2.6 and comment 2]

a. Factors for Determining Appropriate Settlement Practice

When deciding on an appropriate settlement practice, the judge should
consider the following factors: (1) whether the parties have requested or
consented to a certain level of participation by the judge in settlement discus-
sions; (2) whether the parties and their attorneys are relatively sophisticated
in legal matters; (3) whether the case will be tried by the judge or a jury;
(4) whether the parties participate with their lawyers in the discussions; (5)
whether any parties are not represented by counsel; and (6) whether the case
is civil or criminal. [CJC Rule 2.6, comment 2]

7. Avoidance of Bias, Prejudice, and Harassment

A judge must avoid bias, prejudice, and harassment and must require others
(including lawyers) who are under the judge’s direction and control to do likewise.
[CJC Rule 2.3] Prohibited bias, prejudice, or harassment includes that which is based
on race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orien-
tation, marital status, socioeconomic status, or political affiliation. [CJC Rule 2.3]
Harassment consists of verbal or physical conduct that denigrates or shows hostility
or aversion toward a person on any of the bases above. [CJC Rule 2.3, comment 3]
A judge’s duty to control lawyers does not preclude legitimate advocacy by lawyers
when issues of prejudice arise in a case. [CJC Rule 2.3(D)] A judge should be aware
that facial expression and body language can convey prejudice as easily as words.
[CJC Rule 2.3, comment 2]
158. PROFESSIONAL RESPONSIBILITY

EXAMPLE
Whenever an old person testifies in Judge S’s court, Judge S speaks extra loudly
and in a patronizing manner. Whenever Judge S conducts the voir dire of a jury
panel member who is poor, Judge S scowls and adopts a tone of voice normally
reserved for slow learners and errant pets. Judge S is subject to discipline.

8. Ex Parte Communications
“Ex parte” means one side only. An ex parte communication means a communication
between a judge and representative from one side of a matter when no representa-
tive from the other side is present. A judge must not initiate, permit, or consider ex
parte communications except in these three situations:

a. Expressly Authorized by Law

A judge may have ex parte communications when expressly authorized by law
[CJC Rule 2.9(A)(5)], which is defined to include court rules and decisional law,
as well as constitutional and statutory law. [CJC, Terminology] Some communi-
cations authorized by law occur in conjunction with a judge’s service on certain
“specialized” courts, such as drug courts or mental health courts. Judges serving
on such courts may have to assume a more interactive role with parties, treat-
ment providers, probation officers, and social workers. [CJC Rule 2.9, comment 4]

b. Mediation or Settlement
With the consent of the parties, the judge may confer separately with the parties
and their lawyers in an effort to settle or mediate a pending matter. [CJC Rule
2.9(A)(4)]

c. Emergencies or Administrative Matters

In other situations, the judge may have an ex parte communication only if all
four of the following conditions are met:

1) The circumstances require the judge to communicate with one side only (if
the other side cannot be reached);

2) The communication concerns an emergency or a scheduling or adminis-

trative matter as distinct from a substantive matter or matter affecting the
merits;

3) The judge believes that no party will gain a procedural, substantive, or

tactical advantage from the communication; and

4) The judge notifies the lawyers for the other parties of the essence of the
communication and gives them an opportunity to respond.

[CJC Rule 2.9(A)(1)]

 PROFESSIONAL RESPONSIBILITY 159.

d. Inadvertent Receipt of Unauthorized Ex Parte Communication

If a judge inadvertently receives an unauthorized ex parte communication that
relates to substantive matters, she must make provision promptly to notify the
parties of the substance of the communication and give them an opportunity to
respond. [CJC Rule 2.9(B)]

9. Communications from Others

A judge must not initiate, permit, or consider communications from others made
to the judge outside the presence of the parties’ lawyers concerning a pending or
impending matter, except in these two situations:

a. Court Personnel
A judge may consult about a matter with other judges and with other court
personnel whose function is to aid the judge in carrying out adjudicative respon-
sibilities (e.g., the judge’s law clerk). However, the judge: (1) must make reasonable
efforts to avoid receiving factual information that is not part of the record; and (2)
must not abrogate his responsibility to decide the matter. [CJC Rule 2.9(A)(3)]

b. Disinterested Legal Experts

A judge may obtain the written advice of a disinterested expert on the appli-
cable law, provided that the judge gives advance notice to the parties of the
expert’s identity and the subject matter of the advice to be solicited, and gives
the parties a reasonable opportunity to object and respond to the notice and
the advice. [CJC Rule 2.9(A)(2)]

10. Independent Investigation of Facts

A judge must not independently investigate the facts in a case and must consider
only the evidence presented. This prohibition extends to information available in all
mediums, including electronic research (e.g., Internet research). [CJC Rule 2.9(C) and
comment 6]

EXAMPLE
Judge U took a case under submission. While reading the transcript and ponder-
ing her decision, she became puzzled about the testimony of witness W. To save
time and effort, Judge U simply telephoned W and asked him to clarify the point that
puzzled her. Judge U’s conduct is improper.

11. Public Comments on Cases

When a case is pending or impending in any court, a judge must not make any
public comment that might reasonably be expected to affect its outcome or impair
its fairness, or make any nonpublic comment that might substantially interfere with
a fair trial. The judge must require like abstention from court personnel under her
control. [CJC Rule 2.10]
160. PROFESSIONAL RESPONSIBILITY

a. Official Duties Excepted

The duty to abstain from comment does not prohibit judges from making public
statements in the course of their official duties, or from publicly explaining court
procedures. [CJC Rule 2.10(D)]

b. Judge as a Party
The duty to abstain from comment does not apply if the judge is a litigant in a
personal capacity. [Id.] The duty does apply, however, if the judge is a litigant in
an official capacity, as in writ of mandamus proceedings.

EXAMPLE
During the trial of a state criminal case, Judge V ordered the State Governor to
appear as a witness and to bring certain documents that the Governor claimed
were protected as government secrets. The State Attorney General sought a
writ of prohibition from the appellate court to block Judge V’s order. At that
point, Judge V made a public statement that “the Governor apparently has a lot
to hide.” If Judge V’s statement might reasonably be expected to impair the fair-
ness of the proceedings, Judge V is subject to discipline.

12. Promises with Respect to Cases Likely to Come Before Court

With respect to cases or issues that are likely to come before the court, a judge must
not make pledges, promises, or commitments that are inconsistent with the impartial
performance of the adjudicative duties of the office. [CJC Rule 2.10(B)]

13. Decorum, Demeanor, and Communication with Jurors

A judge must require order and decorum in court proceedings. With regard to
persons with whom the judge deals in an official capacity (e.g., litigants, jurors,
witnesses, lawyers, court staff, and court officials), a judge must be patient, digni-
fied, and courteous, and must require similar conduct of others subject to his control.
A judge must not commend or criticize jurors for their verdict other than in a court
order or opinion. [CJC Rule 2.8]

EXAMPLE
After the jury came in with a multimillion-dollar verdict for the plaintiff, Judge X told
the jurors: “Apparently you people just didn’t understand what was going on in this
case.” Judge X then issued a court order setting aside the jury verdict and ordering
a new trial. Judge X’s order was proper, but his comment to the jury was not.

14. Administrative Appointments

Administrative appointments (e.g., appointments of assigned counsel, referees,
special masters, guardians, and court personnel) must be made impartially on the
basis of merit, without nepotism or favoritism. A judge must refrain from making
 PROFESSIONAL RESPONSIBILITY 161.

unnecessary appointments and must not approve compensation of appointees in

excess of the fair value of services rendered. [CJC Rule 2.13]

a. Appointments of Lawyers Contributing to Judge’s Election Campaign

A judge must not appoint a lawyer to a position if the judge knows (or learns
through a timely motion) that the lawyer, the lawyer’s spouse, or the lawyer’s
domestic partner has contributed to the judge’s election campaign more than
the jurisdiction’s specified dollar amount within a designated number of years
prior to the judge’s campaign. However, this provision does not apply if the
appointive position is substantially uncompensated; the lawyer is selected as
part of a rotation of qualified lawyers chosen without regard to their political
contributions; or the judge finds that no other lawyer is willing, competent, and
able to accept the position. [CJC Rule 2.13(B)]

15. Responding to Judicial and Lawyer Misconduct

If a judge has knowledge that another judge has violated the CJC in a manner that
raises a substantial question as to the other judge’s honesty, trustworthiness, or
fitness as a judge, the judge must inform the appropriate authority. The same duty
applies if the judge has knowledge that a lawyer has committed a similar violation
of the Rules of Professional Conduct. A judge who receives information indicating a
substantial likelihood that another judge has violated the CJC (or that a lawyer has
violated the RPC) must take “appropriate action.” What is “appropriate” may range
from direct communication with the alleged violator to reporting the suspected viola-
tion to the appropriate authority. [CJC Rule 2.15 and comment 2]

16. Disability and Impairment of Other Judges or Lawyers

A judge having a reasonable belief that the performance of a lawyer or another
judge is impaired by drugs or alcohol or by a mental, physical, or emotional condition
must take appropriate action, which may include a confidential referral to a lawyer
or judicial assistance program. [CJC Rule 2.14] If the conduct of the impaired person
is sufficiently serious, the judge may be required to report the person to the appro-
priate disciplinary authority. [CJC Rule 2.14, comment 2]

17. Cooperation with Disciplinary Authorities

A judge must cooperate and be honest with judicial and lawyer disciplinary
agencies. Retaliation against a person known or suspected to have cooperated with
an investigation of a judge or lawyer is not permitted. [CJC Rule 2.16]

18. Disqualification

a. General Rule—Whenever Impartiality Might Reasonably Be Questioned

CJC Rule 2.11(A) states the broad, general rule on disqualification of a judge: A
judge must disqualify himself in a proceeding in which the judge’s impartiality
might reasonably be questioned. (Disqualification of federal judges is governed
162. PROFESSIONAL RESPONSIBILITY

by 28 U.S.C. section 455.) Note that the rule employs a reasonableness standard;
a far-fetched argument or litigant’s whim is not sufficient to disqualify a judge.
[See In re Drexel Burnham Lambert Inc., 861 F.2d 1307 (2d Cir. 1988), cert. denied,
490 U.S. 1102 (1989); see also Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252
(2009)—due process required recusal when state supreme court justice received
campaign contributions in an extraordinary amount from, and through the efforts
of, the board chairman and principal officer of the corporate party]

1) Disclosure by Judge
The judge should disclose on the record any information the judge believes
that the parties or their lawyers might consider relevant to the question of
disqualification, even if the judge believes there is no reasonable basis for
disqualification. [CJC Rule 2.11, comment 5]

EXAMPLE
Judge Y plans to retire from the bench at the end of the year and return to
private law practice. Judge Y has held tentative discussions with the private
firm of A, B & C about joining that firm. Now Judge Y is assigned to hear a
case in which the defendant is represented by the A, B & C law firm. Judge
Y should disclose the facts and let the parties decide whether to waive
disqualification.

2) Rule of Necessity
Case law has created a rule of necessity that overrides the rules of disquali-
fication. For example, suppose that Judge Z is the only judge available to
rule on an emergency motion for a temporary restraining order. Judge Z
may rule on the motion even though he might be disqualified were it not an
emergency. Even in such a situation, Judge Z should disclose the ground
for disqualification on the record and should use reasonable efforts to
transfer the matter to a different judge as soon as possible. [CJC Rule 2.11,
comment 3]

EXAMPLE
State trial judge A is assigned to hear a case concerning the constitutional-
ity of a statute that will raise the salary of all trial judges in the state. Judge
A may hear the case because the reason for disqualification applies equally
to all other judges to whom the case might be assigned.

b. Bias or Personal Knowledge

A judge must disqualify himself if there is reasonable ground to believe that
the judge has: (1) a personal bias concerning a party or a party’s lawyer; or (2)
personal knowledge of relevant evidentiary facts. [CJC Rule 2.11(A)(1)] To be
disqualifying, a bias must be personal and stem from an extrajudicial source;
 PROFESSIONAL RESPONSIBILITY 163.

adverse attitudes toward a party formed on the basis of evidence presented

in the case are not disqualifying. [See, e.g., In re Cooper, 821 F.2d 833 (1st Cir.
1987)]

c. Prior Involvement
A judge must disqualify himself if the judge previously:

1) Served as a material witness in the matter;

2) Served as a lawyer in the matter;

3) Was associated in law practice with a person who participated substan-

tially as a lawyer in the matter at the time they practiced together;

4) Presided as a judge over the matter in another court; or

5) Served in governmental employment, and in such capacity participated

personally and substantially as a lawyer or public official concerning the
proceeding, or publicly expressed in such capacity an opinion concerning
the merits of the particular matter in controversy.

[CJC Rule 2.11(A)(6)]

EXAMPLES
1) Before her appointment as a state supreme court justice, Justice C practiced
law with lawyer L. At the time C and L were in practice together, L represented X
in the trial of X v. Y. After the trial, L withdrew as X’s lawyer. Now the case is on
appeal to the state supreme court. Justice C is disqualified.
2) In the preceding example, suppose that L did not begin representing X until
C had left the practice and become a supreme court justice. Justice C need not
recuse herself unless her prior association with L creates a reasonable question
about her impartiality under the general rule of disqualification (see a., supra).

d. Economic Interest
A judge must disqualify himself if the judge knows that he, either as an
individual or as a fiduciary, has an economic interest in the matter or in one of
the parties. Disqualification is also required if the interest is held by the judge’s
spouse, domestic partner, parent, or child (wherever residing) or by any other
member of the judge’s family who resides in the judge’s household. [CJC Rule
2.11(A)(3)] A judge must keep informed about his economic interests and must
make a reasonable effort to keep informed about the economic interests of the
judge’s spouse or domestic partner and minor children residing in the judge’s
household. [CJC Rule 2.11(B)]
164. PROFESSIONAL RESPONSIBILITY

1) Definition of “Economic Interest”

For the purpose of this rule, the term “economic interest” means that a
person owns more than a de minimis legal or equitable interest. A “de
minimis interest” is an insignificant interest that raises no reasonable
question regarding the judge’s impartiality. [CJC, Terminology]

2) Exceptions to Definition
The following are excepted from the definition of “economic interest”:

a) Mutual Funds
Ownership of an interest in a mutual fund or common investment
fund that holds securities is not an economic interest in those securi-
ties unless: (1) the judge participates in the management of the fund;
or (2) the proceeding could substantially affect the value of the
interest.

EXAMPLE
Judge D’s son owns 100 shares of Universal Diversified Fund, a
mutual fund that owns common stocks of many different companies,
including Ohio Chemicals, Inc. Judge D is assigned to hear a case in
which Ohio Chemicals is the defendant. The outcome of the case will
not significantly affect the value of the mutual fund shares, and Judge
D does not participate in the management of the fund. Judge D is not
disqualified.

b) Securities Held by Organization

Suppose that a judge is an officer, director, advisor, or other active
participant in an educational, religious, charitable, fraternal, or civic
organization. Suppose, further, that the organization owns securities
of the XYZ Corporation, which is a party to a case that the judge is
assigned to hear. The judge’s involvement with the organization does
not give the judge an economic interest in the XYZ Corporation. The
same is true if a judge’s spouse, domestic partner, parent, or child
is an officer, director, advisor, or other active participant in such an
organization.

EXAMPLE
Judge E’s wife is a vice president of P.E.O. International, a philanthrop-
ic organization that promotes educational opportunities for women.
Among its many investments, P.E.O. owns 1,000 shares of common
stock in Delta Coal & Steel Inc. Judge E is assigned to hear a case in
which Delta is a party. Judge E is not disqualified.
 PROFESSIONAL RESPONSIBILITY 165.

c) Bank Deposits, Mutual Insurance Policies, and the Like

Suppose that a judge, or member of the judge’s family, owns a deposit
in the First Federal Bank. That does not disqualify the judge from
hearing a case in which First Federal is a party, unless the proceed-
ings could substantially affect the value of the deposit. The same rule
applies to a deposit in a mutual savings association or credit union.

d) Government Securities
An interest in the issuer of government securities is not a disqualifying
economic interest, unless the value of the securities could be substan-
tially affected by the proceedings.

EXAMPLE
Judge G has invested a substantial part of her retirement nest egg
in municipal bonds issued by the city of Springfield. Springfield is on
the brink of fiscal collapse, and Judge G is assigned to hear a case in
which the outcome could substantially affect the value of her bonds.
Judge G is disqualified.

e. Involvement in the Proceeding

A judge must disqualify herself if the judge knows that she, her spouse or
domestic partner, or a person within the third degree of relationship to either of
them, or the spouse or domestic partner of such a person, is:

1) A party, or an officer, director, general partner, managing partner, or trustee

of a party;

2) A lawyer in the proceeding;

3) A person with more than a de minimis interest that could be substantially

affected by the proceeding; or

4) Likely to be a material witness in the proceeding.

[CJC Rule 2.11(A)(2)]

1) Meaning of Third Degree of Relationship

Persons within the third degree of relationship are: great-grandparents,
grandparents, parents, uncles, aunts, brothers, sisters, children, grandchil-
dren, great-grandchildren, nieces, and nephews—in short, anyone related
more closely than cousin. [CJC, Terminology]

f. Persons Making Contributions to Judge’s Election Campaign

A judge who is subject to public election must disqualify himself if he knows, or
166. PROFESSIONAL RESPONSIBILITY

learns through a timely motion, that a party, a party’s lawyer, or the law firm of
a party’s lawyer has, within a designated number of prior years, made contribu-
tions to the judge’s election campaign that exceed the jurisdiction’s specified
amount. [CJC Rule 2.11(A)(4)]

g. Public Statements of Judicial Commitment

A judge must disqualify himself if he, while a judge or a candidate for judicial
office, has made a public statement other than in a court proceeding, judicial
decision, or opinion, that commits or appears to commit the judge to reach a
particular result or to rule in a particular way in the proceeding or controversy.
[CJC Rule 2.11(A)(5)]

h. Remittal of Disqualification
The parties and their lawyers can remit (waive) all of the foregoing grounds of
disqualification, except personal bias concerning a party or a party’s lawyer.
[CJC Rule 2.11(C)] The procedure for remittal is as follows:

1) The judge discloses on the record the ground for disqualification. The judge
may then ask whether the parties and their lawyers wish to discuss waiver.

2) The lawyers consult privately with their respective clients.

3) All of the parties and their lawyers meet, outside the presence of the judge,
and agree that the judge should not be disqualified. The agreement must
be incorporated into the record.

4) If the judge is willing to do so, she may then proceed with the case.

D. EXTRAJUDICIAL ACTIVITIES
A judge must conduct his personal and extrajudicial activities to minimize the risk of
conflict with the obligations of judicial office. [CJC Canon 3]

1. In General
Judges are encouraged to engage in appropriate extrajudicial activities.
Nevertheless, when engaging in such activities, a judge must not:

a. Participate in activities that will interfere with the proper performance of the
judge’s duties; lead to frequent disqualification; or reasonably appear to under-
mine the judge’s independence, integrity, or impartiality;

b. Engage in conduct that would reasonably appear to be coercive; or

c. Use court premises, staff, stationery, equipment, or other resources, except

incidentally, for activities that concern the law, the legal system, or the adminis-
tration of justice, unless such additional use is legally permitted.

[CJC Rule 3.1]

 PROFESSIONAL RESPONSIBILITY 167.

2. Governmental Hearings and Consultations

A judge must not appear voluntarily at a public hearing before, or otherwise consult
with, an executive or legislative body or official, except on matters concerning the
law, the legal system, or the administration of justice. However, this duty does not
apply when the judge is acting pro se in a matter that involves the judge or his
interests, or when the judge is acting as a fiduciary. Also, the duty does not apply in
connection with matters about which the judge acquired knowledge or expertise in
the course of her judicial duties. [CJC Rule 3.2]

EXAMPLES
1) Judge M is invited to testify before the State Assembly Committee on Criminal
Justice concerning a proposed revision of the state’s mandatory sentencing statute.
Judge M may testify.
2) Judge N met privately with the Mayor of the city of Glenview to protest the city’s
plan to open a city dump adjacent to Judge N’s property. As long as Judge N did
not refer to his judicial position or otherwise use the prestige of his office (see B.4.,
supra), the meeting was proper because it concerned Judge N’s own interests.

3. Testifying as Character Witness

A judge must not testify as a character witness, except when duly summoned to do
so, i.e., by subpoena. Ordinarily, a judge should discourage parties from requiring his
testimony as a character witness. [CJC Rule 3.3 and comment 1]

4. Governmental Committees and Commissions

A judge must not accept an appointment to a governmental committee or commis-
sion or other governmental position that does not relate to the law, the legal system,
or the administration of justice. Such appointments are likely to be very time-
consuming, can involve the judge in controversial matters, and can interfere with the
independence of the judiciary. A judge may, however, represent a governmental unit
on a ceremonial occasion, or in connection with a historical, educational, or cultural
activity. [CJC Rule 3.4 and comments 1 and 2]

5. Participation in Educational, Religious, Charitable, Fraternal, or Civic

Organizations and Activities
Subject to the general restrictions on extrajudicial activities, a judge may take part
in activities sponsored by organizations or governmental entities concerned with
the law, the legal system, or the administration of justice, and those sponsored by
or on behalf of educational, religious, charitable, fraternal, or civic organizations not
conducted for profit. [CJC Rule 3.7(A)] Included among such permissible activities are
the following:

(i) Assistance in planning for fund-raising, and participation in management and

investment of funds;
168. PROFESSIONAL RESPONSIBILITY

(ii) Solicitation of contributions for the organization, but only from members of the
judge’s family or from judges over whom the judge has no supervisory or appel-
late authority;

(iii) Membership solicitation, even though the dues or fees generated may be used
to support the objectives of the organization, but only if the organization is
concerned with the law, the legal system, or the administration of justice;

(iv) Appearing or speaking at, receiving an award at, being featured on the program
of, and permitting her title to be used in connection with an organization’s event
(if the event is a fundraiser, such participation is permitted only if the event
concerns the law, the legal system, or the administration of justice);

(v) Making recommendations to a fund-granting organization in connection with its

programs and activities, but only if the organization is concerned with the law,
the legal system, or the administration of justice; and

(vi) Service as an officer, director, trustee, or nonlegal advisor, unless it is likely that
the organization will be engaged in proceedings that would ordinarily come
before the judge, or will frequently be engaged in adversary proceedings in the
court on which the judge sits or one under its appellate jurisdiction.

a. Encouraging Pro Bono Service

A judge may encourage lawyers to provide pro bono publico legal services.
However, in providing such encouragement, a judge must not use coercion or
abuse the prestige of her office. [CJC Rule 3.7(B), comment 5]

6. Affiliation with Discriminatory Organizations

A judge must not hold membership in an organization that practices invidious
discrimination based on race, sex, gender, religion, national origin, ethnicity, or
sexual orientation. [CJC Rule 3.6(A)] Even if the judge is not a member of such an
organization, he must not use the organization’s benefits or facilities if he knows or
should know that it practices one of the prohibited forms of invidious discrimination.
However, the judge may attend an event in a facility of the organization if his atten-
dance is an isolated event that could not reasonably be perceived as an endorse-
ment of the organization’s practices. [CJC Rule 3.6(B)]

EXAMPLE
The Ashmount Golf and Tennis Club limits its membership to Caucasian males.
Judge M is not a member of the club, but three times a week he eats lunch at the
club as a guest of a member. Judge M is in violation of Rule 3.6(B).

a. Determination of “Invidious Discrimination”

An organization discriminates invidiously if it arbitrarily excludes from member-
ship, on any of the bases enumerated above, persons who would otherwise be
 PROFESSIONAL RESPONSIBILITY 169.

eligible for admission. An examination of the organization’s membership rolls is

not solely dispositive of the issue. It is important to determine how the organiza-
tion selects its members. Other relevant factors include whether the organiza-
tion is dedicated to the preservation of religious, ethnic, or cultural values of
legitimate common interest to its members, or whether it is an intimate, purely
private organization whose membership limitations could not constitutionally be
prohibited. [CJC Rule 3.6, comment 2]

EXAMPLE
Judge G belongs to the Slovenian League, which limits its membership to all
descendants (regardless of sex or race) of persons from Slovenia. The object of
the organization is to preserve the culture and traditions of the Slovenian peo-
ple. Judge G’s membership is permissible.

b. Exercise of Religion Does Not Violate Rule

Membership in a religious organization as a lawful exercise of freedom of religion
does not violate Rule 3.6. [CJC Rule 3.6, comment 4]

c. Immediate Resignation Required

Upon learning that an organization to which he belongs engages in invidious
discrimination, a judge must resign immediately from the organization. [CJC Rule
3.6, comment 3]

7. Use of Nonpublic Information

A judge must not intentionally disclose or use nonpublic information acquired in his
judicial capacity for any purpose unrelated to his judicial duties. [CJC Rule 3.5]

8. Financial, Business, or Remunerative Activities

Generally, a judge may not serve as an officer, director, manager, general partner,
advisor, or employee of a business. However, a judge may hold and manage her own
investments and those of her family and may manage or participate in a business
closely held by the judge or a family member, or in a business primarily engaged in
investing the financial resources of the judge or her family, unless such activity will:

(i) Interfere with the proper performance of the judge’s duties;

(ii) Lead to frequent disqualification of the judge;

(iii) Involve the judge in frequent transactions or continuing business relationships

with lawyers or other persons likely to come before the court on which the
judge serves; or

(iv) Result in a violation of other provisions of the CJC.

[CJC Rule 3.11]

170. PROFESSIONAL RESPONSIBILITY

a. Divesting Problematic Interests

As soon as practicable without serious financial detriment, a judge must divest
herself of investments and other financial interests that might require frequent
disqualification or otherwise violate Rule 3.11. [CJC Rule 3.11, comment 2]

b. Minimizing Time Spent on Business Activities

It is improper for a judge to devote so much time to her business activities that it
interferes with her judicial duties. [CJC Rule 3.11, comment 1]

9. Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things

of Value
A judge must not accept gifts, loans, bequests, benefits, or other things of value if
acceptance thereof is prohibited by law or would reasonably appear to undermine
the judge’s independence, integrity, or impartiality. [CJC Rule 3.13(A)]

a. Gifts Acceptable Without Reporting

If not prohibited by the requirements of Rule 3.13(A), the following may be
accepted without being publicly reported:

1) Items of little intrinsic value (e.g., plaques or certificates);

2) Things of value from individuals whose appearance or interest in a case

would require the judge’s disqualification in any event—e.g., friends,
relatives, or persons with cases pending or impending before the judge
under Rule 2.11 (see C.18., supra);

3) Ordinary social hospitality;

4) Commercial or financial opportunities, including discounts and loans in the

regular course of business, provided the same opportunities are available
on the same terms to similarly situated persons who are not judges;

5) Rewards and prizes given to participants in drawings and contests that are
open to persons who are not judges;

6) Scholarships and fellowships, provided they are available to similarly

situated persons who are not judges, based on identical criteria;

7) Books, magazines, journals, and other resource materials supplied by

publishers on a complimentary basis for official use; and

8) Gifts, awards, or benefits associated with the business or separate activity

of a spouse, domestic partner, or other family member residing in the
judge’s household, but that incidentally benefit the judge.

[CJC Rule 3.13(B)]

 PROFESSIONAL RESPONSIBILITY 171.

b. Gifts that Must Be Reported

If not prohibited by the requirements of Rule 3.13(A), the following may be
accepted but must be publicly reported if so required by Rule 3.15:
1) Gifts incident to a public testimonial;
2) Invitations to the judge and her spouse, domestic partner, or guest to
attend without charge an activity related to the law, the legal system, or
the administration of justice, or an event associated with any of the judge’s
educational, religious, charitable, fraternal, or civic activities permitted by
the CJC, if the same invitation is offered to nonjudges who are engaged in
similar ways in the activity; and
3) Gifts, loans, bequests, or other things of value, if the source is a person
who has come, or is likely to come, before the judge, or whose interests
have come, or are likely to come, before the judge.
[CJC Rule 3.13(C)]
10. Fiduciary Activities
Generally, a judge must not serve as an executor, administrator, trustee, guardian, or
other fiduciary. However, a judge may serve in such a capacity for a member of the
judge’s family, if the service will not:
(i) Interfere with the judge’s judicial duties;
(ii) Involve the judge in proceedings that would ordinarily come before him; or
(iii) Involve the judge in adversary proceedings in the court on which the judge sits
or one under its appellate jurisdiction.
[CJC Rule 3.8]
a. Financial Dealings as Fiduciary
The restrictions on financial dealings that apply to a judge personally also apply
when the judge acts as a fiduciary. [CJC Rule 3.8(C)]
b. Conflicting Duties
When the duties of a fiduciary conflict with the judge’s duties under the Code of
Judicial Conduct, the judge should resign as fiduciary. [CJC Rule 3.8, comment 1]

EXAMPLE
Judge V is appointed as trustee of a fund for the use and benefit of his invalid
brother. The trust fund includes common stock of several companies that fre-
quently appear as litigants before Judge V. The judge must manage her in-
vestments in a way that minimizes disqualifications. If the trust fund would be
harmed by divestiture of those stocks, Judge V should not serve as trustee. [Id.]
172. PROFESSIONAL RESPONSIBILITY

c. Fiduciary Who Becomes a Judge Must Comply with Rule

If a person serving as a fiduciary becomes a judge, she must comply with
Rule 3.8 as soon as reasonably practicable, but no later than one year after
becoming a judge. [CJC Rule 3.8(D)]

11. Service as Arbitrator or Mediator

A full-time judge must not act as an arbitrator, mediator, or private judge unless
expressly authorized by law. This does not, of course, prevent the judge from partici-
pating in arbitration, mediation, or settlement conferences as part of her regular
judicial duties. [CJC Rule 3.9 and comment 1]

12. Practice of Law

A full-time judge must not practice law. However, a judge may act pro se and may,
without compensation, give legal advice to, and draft or review documents for, a
member of her family. A judge must not, however, act as a family member’s lawyer in
any forum. [CJC Rule 3.10]

13. Compensation for Extrajudicial Activities

Reasonable compensation for a judge’s extrajudicial activities (e.g., compensation for
speaking, teaching, or writing) is permitted unless acceptance thereof would reason-
ably appear to undermine the judge’s independence, integrity, or impartiality. Any
such compensation must be reasonable and commensurate with the task performed.
[CJC Rule 3.12 and comment 1]

14. Reimbursement of Expenses and Waiver of Fees or Charges

Unless otherwise prohibited by the CJC, a judge may accept reimbursement of
necessary and reasonable expenses for travel, food, lodging, or other incidentals,
or a waiver of fees or charges for registration or tuition, from sources other than the
judge’s employer, if such expenses are associated with the judge’s participation in
extrajudicial activities permitted by the CJC. Reimbursement for expenses may not
exceed the actual costs reasonably incurred by the judge and, when appropriate,
her spouse, domestic partner, or guest. A judge who accepts reimbursement of
expenses or waivers of fees must comply with the public reporting requirements of
Rule 3.15. [CJC Rule 3.14]

a. Factors Judge Should Consider in Determining Propriety of

Reimbursement or Fee Waiver
A judge must assure herself that acceptance of reimbursement or a fee waiver
would not appear to undermine her independence, integrity, or impartiality. In
making this determination, a judge should consider the following:

1) Whether the sponsor is an accredited educational institution or bar associa-

tion rather than a trade association or a for-profit entity;
 PROFESSIONAL RESPONSIBILITY 173.

2) Whether funding comes largely from numerous contributors rather than

from a single entity and is earmarked for programs with specific content;

3) Whether the content is related to the subject matter of litigation pending or

impending before the judge, or to matters likely to come before the judge;

4) Whether the activity is primarily educational rather than recreational, and

whether the costs are reasonable and comparable to the costs of similar
events sponsored by the judiciary or bar associations;

5) Whether information related to the activity and its funding sources is avail-
able upon request;

6) Whether the sponsor or source of funding is generally associated with

parties or interests currently appearing or likely to appear in the judge’s
court, thus potentially requiring the judge’s disqualification under Rule 2.11
(see C.18., supra);

7) Whether differing viewpoints are presented; and

8) Whether a broad range of judicial and nonjudicial participants are invited,

whether a large number of participants are invited, and whether the
program is designed specifically for judges.

[CJC Rule 3.14, comment 3]

15. Reporting Requirements

A judge must publicly report the amount or value of:

(i) Compensation received for extrajudicial activities as permitted by Rule 3.12

(see 13., supra);

(ii) Gifts and other things of value permitted by Rule 3.13 (see 9., supra), unless the
value, alone or in aggregation with other items received from the same source
during the same calendar year, does not exceed a dollar amount determined by
other state law; and

(iii) Reimbursement of expenses and waiver of fees or charges permitted by Rule

3.14 (see 14., supra), unless the amount thereof, alone or in aggregation with
other reimbursements or waivers received from the same source during the
same calendar year, does not exceed a dollar amount determined by other
state law.

[CJC Rule 3.15(A)]

174. PROFESSIONAL RESPONSIBILITY

a. Contents of Public Report

The public report must state the date, place, and nature of the activity for which
the judge received compensation. Any gifts, loans, or other things of value
must be described. The report must also state the source of reimbursement of
expenses or waiver of fees or charges. [CJC Rule 3.15(B)]

b. Time for Making Report

Public reports must be made at least annually. However, reports of reimburse-
ment of expenses and waiver of fees or charges must be made within 30 days
after the conclusion of the event or program. [CJC Rule 3.15(C)]

c. Location of Filing
Public reports must be filed in the office of the clerk of the court on which the
judge sits, or in some other office designated by law. If feasible, reports must
also be filed on the court’s website. [CJC Rule 3.15(D)]

E. JUDGES’ POLITICAL AND CAMPAIGN ACTIVITIES

A judge or candidate for judicial office must not engage in political or campaign activity
that is inconsistent with the independence, integrity, or impartiality of the judiciary. [CJC
Canon 4] A person becomes a judicial candidate when she publicly announces her
candidacy, declares or files with the election or appointment authority, authorizes or,
where permitted, engages in solicitation or acceptance of contributions or support, or is
nominated for election or appointment to office. [CJC Terminology]

1. Political and Campaign Activities of Judges and Judicial Candidates in General

Except where permitted by law or by Rules 4.2, 4.3, or 4.4 of the CJC (discussed
infra), a judge or a judicial candidate must not:

(i) Lead or hold office in a political organization;

(ii) Make speeches on behalf of a political organization;

(iii) Publicly endorse or oppose a candidate for public office;

(iv) Solicit funds for, pay an assessment to, or contribute to a political organization or
a candidate for public office;

(v) Attend or buy tickets for dinners or other events sponsored by a political organi-
zation or a candidate for public office;

(vi) Publicly identify herself as a candidate of a political organization;

(vii) Seek, accept, or use endorsements from a political organization;

(viii) Personally solicit or accept campaign contributions other than through a

campaign committee authorized by Rule 4.4;
 PROFESSIONAL RESPONSIBILITY 175.

(ix) Use or permit the use of campaign contributions for private benefit;

(x) Use court staff, facilities, or other court resources in her campaign;

(xi) Knowingly, or with reckless disregard for the truth, make a statement that is
false or misleading, or that omits facts necessary to make the communication
considered as a whole not materially misleading;

(xii) Make a statement that would reasonably be expected to affect the outcome or
impair the fairness of a matter pending or impending in any court; or

(xiii) In connection with 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 judicial office.

[CJC Rule 4.1(A)]

a. Activities of Other Persons

A judge or candidate must take reasonable measures to ensure that other
persons do not undertake on her behalf any of the prohibited activities set forth
in 1., supra. [CJC Rule 4.1(B)]

b. No “Family Exception” to Prohibition Against Candidate Endorsement

A judge or candidate must avoid involvement in a family member’s political
activity or campaign for public office. Reasonable steps must be taken to avoid
the implication that the judge or candidate endorses the family member. [CJC
Rule 4.1, comment 5]

c. Participation in Caucus-Type Elections Is Permitted

Participation in a caucus-type election procedure does not constitute public
support for or endorsement of a political organization or candidate. [CJC Rule
4.1, comment 6]

d. Responding to Statements by Others

A judicial candidate may make a factually accurate public response to false
or misleading statements issued by her opponent, third parties, or the media,
concerning, e.g., her integrity, experience, or fitness for office. [CJC Rule 4.1,
comment 8] Although the candidate may respond directly, if the allegations to
which she is responding relate to a pending case, it is preferable for someone
else to respond. [CJC Rule 4.1, comment 9]

e. Pledges or Promises
To determine whether a candidate has made a pledge or promise, one must
examine the totality of a statement. If a reasonable person would think that
the candidate has specifically undertaken to reach a particular result, then a
176. PROFESSIONAL RESPONSIBILITY

pledge, promise, or commitment has been made. Note, however, that a state-
ment of personal views on legal, political, or other issues is not prohibited.
[CJC Rule 4.1, comment 13] The United States Supreme Court has held that
such “announce clauses”—i.e., prohibitions on judicial candidates announcing
their views on disputed legal or political issues—violate the First Amendment.
[Republican Party of Minnesota v. White, 536 U.S. 765 (2002)]

1) Promises Related to Judicial Organization Permitted

A judicial candidate may make campaign promises related to judicial organi-
zation, administration, and court management, e.g., promises to dispose of
case backlogs or to begin court sessions on time. It is also permissible to
pledge to take certain actions outside the courtroom, such as working to
improve the jury selection system or advocating more funds to improve the
physical facilities of a courthouse. [CJC Rule 4.1, comment 14]

2) Responding to Media Questionnaires Requires Caution

Candidates often receive questionnaires or interview requests from the
media or from issue advocacy groups, in an effort to discern their views
on disputed or controversial issues. Responses to such questions might
be viewed as impermissible promises or pledges. Thus, candidates who
respond to such inquiries should give assurances that they will keep
an open mind and will carry out their adjudicative duties faithfully and
impartially if elected. If a candidate does not respond, she may state
that a response might be perceived as undermining her independence
or impartiality, or might lead to frequent disqualification. [CJC Rule 4.1,
comment 15]

2. Political and Campaign Activities of Judicial Candidates in Public Elections

A judicial candidate in a partisan, nonpartisan, or retention public election must:

(i) Act in a manner consistent with the independence, integrity, and impartiality of
the judiciary;

(ii) Comply with applicable election, election campaign, and campaign fund-raising
laws and regulations of the jurisdiction;

(iii) Review and approve the content of campaign statements and materials
produced by the candidate or her campaign committee before their dissemina-
tion; and

(iv) Take reasonable measures to ensure that other persons do not undertake on
her behalf activities that the candidate is prohibited from doing by Rule 4.1.

[CJC Rule 4.2(A)]

 PROFESSIONAL RESPONSIBILITY 177.

a. Certain Activities Permitted

Unless prohibited by law, a candidate for elective judicial office may, no earlier
than a minimum amount of time (to be determined by other state law) prior to the
first applicable primary, caucus, or general or retention election, do the following:

(i) Establish a campaign committee pursuant to Rule 4.4 (see 4., infra);

(ii) Speak on behalf of her candidacy through any medium;

(iii) Publicly endorse or oppose candidates for the same judicial office for which
she is running;

(iv) Attend or purchase tickets for dinners or other events sponsored by a

political organization or a candidate for public office;

(v) Seek, accept, or use endorsements from any person or organization other
than a partisan political organization; and

(vi) Contribute to a political organization or candidate for public office, but not
more than a maximum dollar amount to be determined by each jurisdiction
to any one organization or candidate.

[CJC Rule 4.2(B)]

1) Exception—Candidates in Partisan Elections May Be Identified with

Political Organizations
Unless prohibited by law, a judicial candidate in a partisan election may,
not earlier than a minimum amount of time designated by other state law
prior to the first applicable primary, caucus, or general election:

a) Identify herself as a candidate of a political organization; and

b) Seek, accept, and use endorsements of a political organization.

[CJC Rule 4.2(C)]

3. Activities of Candidates for Appointive Judicial Office

A candidate for appointment to judicial office may communicate with the appointing
or confirming authority, including any selection, screening, or nominating commis-
sion. Also, a candidate may seek the endorsement of a person or organization, other
than a partisan political organization. [CJC Rule 4.3]

4. Campaign Committees
A judicial candidate running in a public election may establish a campaign
committee to manage and conduct her campaign. The candidate is responsible for
ensuring that the committee complies with applicable law and applicable parts of the
CJC. [CJC Rule 4.4(A)]
178. PROFESSIONAL RESPONSIBILITY

a. Solicitation Time Limits

The candidate must direct the committee not to solicit or accept contributions
more than a certain amount of time (designated by other state law) prior to the
applicable election, nor more than a designated number of days after the last
election in which the candidate participated. [CJC Rule 4.4(B)(2)]

b. Campaign Contribution Limits

The candidate must direct the committee to solicit and accept only reasonable
contributions, not to exceed the jurisdiction’s specified limits. [CJC Rule 4.4(B)(1)]

c. Disclosure Requirements
The candidate must direct the committee to comply with any statutory require-
ments for disclosure and divestiture of campaign contributions, and to file with
the appropriate authority a report that states the name, address, occupation,
and employer of each person who has contributed an amount in excess of the
applicable maximum. The report must be filed within a post-election time period
designated by the jurisdiction. [CJC Rule 4.4(B)(3)]

5. Activities of Judges Who Become Candidates for Nonjudicial Office

When a judge becomes a candidate for a nonjudicial elective office, she must resign
her judgeship unless applicable law permits her to retain her judicial office. If the
judge becomes a candidate for a nonjudicial appointive office, she need not resign
her judgeship, provided that she complies with all other provisions of the CJC. [CJC
Rule 4.5]

F. APPLICATION OF THE CODE OF JUDICIAL CONDUCT

In jurisdictions that adopt the Code of Judicial Conduct, it applies to all persons who
perform judicial functions, including magistrates, court commissioners, and special
masters and referees. The Application section of the CJC contains a group of highly
detailed exceptions that make various parts of the CJC inapplicable to several catego-
ries of retired and part-time judges. If your purpose in reading this book is to answer
a specific question about the conduct of such a person, you should examine the
Application section of the CJC with care. On the other hand, if your purpose is to prepare
for the Multistate Professional Responsibility Examination, we suggest that mastering
the detailed exceptions is not the best use of your time, and that you be content with the
following broad generalizations:

1. A retired judge subject to recall is allowed to serve as an arbitrator or mediator

(except while serving as a judge) and is allowed to serve as a fiduciary. [CJC
Application II]

2. Continuing part-time judges, periodic part-time judges, and pro tempore part-time
judges are exempt from many, but not all, of the CJC provisions that restrict outside
activities and political activities. [See CJC Application III, IV, V]
 REVIEW QUESTIONS 179.

REVIEW QUESTIONS

FILL IN
ANSWER

Answer each of the following review questions “Yes” or “No.”

1. While lawyer Limpet was a law student, he took a job interview trip to a distant city.
He requested and received reimbursement from two different law firms for the full
expenses of his trip—thus receiving double what the trip cost him. Limpet’s conduct
came to light only after he was admitted to the bar of State A. State A has a statute
that specifies under what circumstances a lawyer can be disciplined for misconduct,
and the statute says nothing about discipline for conduct committed before being
admitted to the bar. Is Limpet subject to discipline by the supreme court of State A
for his dishonest conduct?
2. Lawyer Lupus is a member of the bar of State A, and one of his clients was sued in
the United States District Court that sits in State A. Would it be proper for Lupus to
serve as counsel of record in the case without being separately admitted to practice
in that United States District Court?

3. Oster is a member of the bar of West Carolina, but he never practiced law in that state.
After 27 years in politics, he was appointed to the United States Supreme Court. A
few years later, he resigned from the Court under the threat of a bribery investigation.
Would Oster be subject to discipline in West Carolina if there was an investigation?

4. Attorney Abydos is a member of the bar of State A, but not of State B. Some of
Abydos’s clients live across the river in State B. When one of her State B clients
becomes a party to litigation pending in State B, may Abydos serve as counsel of
record, without being admitted pro hac vice in State B and without associating with
a State B lawyer?

5. To apply for admission to the state bar of East Dakota, one must fill out a long, com-
plicated information form. One of the questions on the form asks for the address of
every place the applicant has lived for longer than one month, from birth onward.
Bar applicant Appleby had lived in a great many places and could not remember the
addresses of most of them; furthermore, she concluded that the state bar had no busi-
ness knowing such information in any event. Therefore, she listed only her current
address and the address of the house in which she spent most of her childhood years.
Was this proper?

6. Client Cronin asked lawyer Lavelle to take over as her counsel in a civil case. Cronin
explained in confidence that she had fired Aspner, her former counsel, because he
had used threats of violence to force her to have sexual relations with him. Cronin
instructed Lavelle not to tell anyone what Aspner had done to her. Should Lavelle
nevertheless report Aspner’s conduct to the appropriate disciplinary authorities?

7. Mertin, a nonlawyer, worked as a messenger for lawyer Lefkowitch’s law firm. Mertin
asked Lefkowitch to refer him to a good form book so that Mertin could prepare the
180. REVIEW QUESTIONS

legal papers that his sister needed to adopt a baby. Should Lef­ko­­­witch comply with
Mertin’s request?

8. Shelby is employed by a cosmetics company, where she serves as in-house counsel.

Shelby is licensed in the state of Oberon and has been working for the company in
that state for 10 years; however, the company wants to relocate Shelby to the state
of Tiberon. Shelby is not licensed in Tiberon. Would it be proper for Shelby to set
up an office and conduct a continuous practice in Tiberon without being admitted to
practice there?

9. Client Cardwell asked her neighbor’s friend, lawyer Lubner, to represent her in a
paternity suit against the suspected father of her first child. Without mentioning the
matter of legal fees, Lubner did the work promptly and effectively. Then, when the
matter was completed, Lubner sent Cardwell a bill for a reasonable fee. Was Lubner’s
conduct proper?

10. After a night of heavy drinking, Duphus and his friend Pugman got into a fight with
each other. Pugman got the worst of it. The next day he sued Duphus for civil assault
and battery. Duphus retained lawyer Laud, who agreed to defend Duphus for a $5,000
flat fee, payable in advance. Duphus paid Laud the fee. Two days later, Duphus and
Pugman became friends again, and Pugman dismissed his suit. Duphus conveyed
his good news to Laud and asked for his money back, but Laud would not return any
of it. Was Laud’s conduct proper?

11. Attorney Alarcon is one of the three best municipal bond attorneys in the state. He
has done all of the bond work for the city of Denton for the past 28 years. Now, the
city of Denton has asked him to write an opinion letter concerning a new paving and
sewer bond issue. Alarcon consulted a similar letter he had written for Denton eight
months earlier, checked to confirm the accuracy of the facts supplied to him, reread
a recent appellate decision on municipal bonds, and completed the new opinion let-
ter—all in less than six hours. For this work, Alarcon charged the city of Denton
$10,000. Is Alarcon subject to discipline?

12. Is it true that a lawyer may allow clients to pay for legal fees by credit card?

13. Client Coro hired lawyer Low to defend him in a cocaine smuggling case. Coro agreed
to pay Low $3,000 in advance and another $30,000 if Coro is acquitted. If $33,000
would be a reasonable fee in light of the nature of the case and the amount of work
required, is Low’s conduct proper?

14. One of the clauses in attorney Altman’s standard employment contract provides that
in the event that Altman and the client disagree over Altman’s fee, the two of them
will submit the matter to arbitration before a mutually agreeable arbitrator. Is Altman
subject to discipline?

15. Client Culpa asked his neighbor, lawyer Ledbetter, for her advice about bringing suit
against his employer for age discrimination. Ledbetter advised Culpa to retain at-
torney Arneson, an expert in employment discrimination matters. Culpa did so, and
 REVIEW QUESTIONS 181.

Arneson agreed to handle the case on a one-third contingent fee basis. When Culpa
won a large judgment, Arneson sent Ledbetter 5% of the contingent fee. Was this
proper?

16. Private criminal defense attorney Axelrodd was hired to defend Dervish in a mayhem
case. After Dervish described the facts to Axelrodd in confidence, Axelrodd concluded
that Dervish was guilty as charged. Dervish, however, insisted on pleading not guilty
and going to trial. May Axelrodd continue as Dervish’s counsel if Dervish persists
in his desire to plead not guilty?
17. Lawyer Leonard represented the plaintiff in a products liability suit. The defense
lawyer telephoned Leonard and made a settlement offer that was unreasonably low.
Leonard rejected it instantly and said: “Don’t call again unless you have something
to say, meatball.” Is Leonard subject to discipline?

18. Lawyer Lispley is defending Toxatec, Inc., in an air pollution case. At the close of
discovery, Toxatec instructed Lispley to move for summary judgment. Lispley ex-
plained that there were a host of disputed fact issues and that a motion for summary
judgment would be frivolous. Toxatec persisted in its instruction. Must Lispley do as
his client has instructed?

19. Is it true that when representing a mentally disabled person, a lawyer should herself
make the decisions that would ordinarily be made by the client?

20. Client Coleman obtained the services of legal aid attorney Adler in a dispute with
the State Handicapped Assistance Commission over Coleman’s eligibility for special
medical assistance. The Commission Hearing Officer ruled that Coleman was not
eligible for assistance. Such rulings can be appealed to the full Commission. Adler
believed that an appeal would probably not be successful, and she therefore did not
advise Coleman of the possibility of an appeal. Was Adler’s conduct proper?

21. Client Croaque asked his friend and neighbor, lawyer Lugash, for legal advice about
a problem that Croaque was having with attorney Ahman. Croaque had hired Ahman
to do some legal work. One of the clauses in Ahman’s standard form employment
contract provided that Croaque could “terminate this contract at any time upon five
days’ notice and payment of a $10,000 severance fee.” Before Ahman had spent any
substantial amount of time on Croaque’s matter, Croaque had lost confidence in Ah-
man’s ability to do the work properly. Croaque asked Lugash whether he could fire
Ahman without having to pay the so-called severance fee. Without telling Croaque
that he and Ahman were good friends, Lugash advised Croaque that he would have
to pay the severance fee if he fired Ahman. Is Lugash subject to discipline?

22. Is it true that a lawyer may withdraw from representing a client simply because the
lawyer believes that the client’s objectives are imprudent?

23. Solo practitioner Plebert agreed to represent client Cisco in a real property dispute.
The dispute became more and more complex as time wore on, and Cisco became un-
able to pay Plebert’s fees. Ultimately, the matter became a serious threat to Plebert’s
financial well-being. May she withdraw from the matter?
182. REVIEW QUESTIONS

24. Lawyer Lerner was representing client Caufman in negotiations for the sale of
Caufman’s business. Despite Lerner’s earnest admonitions, Caufman insisted that
certain contingent liabilities not be disclosed to the prospective buyer. Finally, Lerner
had no choice but to withdraw. In these circumstances, must Lerner give Caufman
advance notice and time to get another lawyer?

25. Lawyer Legree is the in-house general counsel of TransCoastal Corporation, a com-
pany that employs 500 people and sells its products in interstate commerce. As gen-
eral counsel, Legree has overall responsibility for the company’s legal affairs. Does
Legree have any duty to keep abreast of current literature and current developments
in the field of labor law?

26. The state bar of State A brought disciplinary proceedings against attorney Admetus
for incompetence in defending Dorner in a criminal case. Ultimately, the state bar
decided not to impose discipline on Admetus. Thereafter, Dorner sued Admetus for
legal malpractice; Dorner’s claim was based on the same facts as the disciplinary
proceedings. Can Admetus invoke the doctrine of res judicata and have Dorner’s suit
dismissed?

27. Lawyer Lemur represented D in the civil case of A v. D. Later, Lemur represented
B in a substantially related civil suit against D. D sued Lemur for legal malpractice.
Lemur’s state has adopted the ABA Model Rules of Professional Conduct. At the trial
of the malpractice case, D offered evidence that Lemur’s conduct was in violation of
ABA Model Rules 1.7 and 1.9. Lemur objected that the evidence should be excluded
as irrelevant. Should the trial judge sustain Lemur’s objection?

28. One of the terms of attorney Adoula’s retainer agreement with client Cruz provided
that Adoula would “exercise ordinary care in performing the aforementioned legal
services.” Two and a half years after Cruz learned that Adoula had been negligent
in performing the legal services, Cruz sued Adoula for legal malpractice. Cruz’s
complaint alleged both tort and contract claims. The state law provides a two-year
statute of limitations for negligence claims and a four-year statute of limitations for
actions based on written contracts. Is Adoula entitled to have Cruz’s entire complaint
dismissed as untimely?

29. Lawyer Lingam is a certified specialist in taxation law in State A. Lingam muddled a
tax transaction for client Chang, and Chang sued Lingam for legal malpractice. In that
suit, Chang asserted that the relevant standard of care is that of certified specialists
in taxation, not that of ordinary lawyers. Is Chang correct?

30. Attorney Aisha lost her client’s case because she placed her total reliance on an ap-
pellate court case that had later been overruled. Had Aisha bothered to Shepardize
the case, or to use WESTLAW or LEXIS, she would have discovered that the case
had been overruled. If her client sues her, is Aisha subject to civil liability?
31. When the local newspaper printed a patently false story about Crullner, he hired
Arnott (who is engaged in general civil and criminal practice) to sue the paper for
libel. The newspaper won the case on summary judgment. Is Arnott subject to civil
liability for failing to refer the case to a specialist in the law of libel and slander?
 REVIEW QUESTIONS 183.

32. When young attorney Amax was training his new legal secretary, Stacey, he told her
always to send a copy of litigation papers to opposing counsel. Amax was assigned
to assist senior partner Pough in pretrial phases of a civil case. After careful study,
Pough and Amax concluded that their client would probably lose if the case went
to trial. Pough told Amax to write a confidential letter to their client to explain the
weaknesses in the case and to recommend settling it for whatever sum the adversary
would offer. Amax wrote the letter, and Stacey dutifully sent a copy of the letter to
opposing counsel. If the client is able to prove that this blunder resulted in a lower
settlement than he otherwise would have received, is senior partner Pough subject to
civil liability?

33. Is it true that a lawyer must carry a “reasonably adequate” amount of malpractice
insurance?

34. When lawyer Langur was fired by client Conorf, Langur declined to send Conorf’s
litigation files to Conorf’s new lawyer until Conorf signed a release discharging
Langur from liability for malpractice. Was Langur’s conduct proper?

35. Deputy Public Defender Fox was assigned to defend Dix on a charge of selling heroin.
In confidential communications with Fox, Dix insisted that he was not guilty and
had been framed by the police. Fox then sought out and found an ex-convict whom
she knew to be a heroin user; the ex-convict told her that Dix was widely known
throughout the city as a steady source for heroin. Is the information that Fox got from
the ex-convict protected by the attorney-client privilege?

36. Robul showed up unannounced in the offices of attorney Astorian, told Astorian that he
had robbed a bank and was being pursued by the police, and asked Astorian to give
him legal assistance. Astorian told Robul that he was an estate planning specialist,
never practiced criminal law, and did not wish to represent Robul. Robul thereupon
left as quickly as he had come. The police arrested Robul a block down the street,
and they then asked Astorian what Robul had said to him. May Astorian respond to
the police inquiry?

37. The president of Dorsett Corporation suspected that some of the corporation’s sales
personnel were engaging in price-fixing with their counterparts from other corpora-
tions. She therefore hired an outside lawyer, Longfellow, to investigate the matter
and to prepare a full report for her use. She instructed each of the corpo­ration’s re-
gional sales representatives to cooperate completely with Longfellow’s investigation.
Longfellow interviewed each sales representative and wrote a report to the president
in which he concluded that some of the sales representatives had indeed engaged in
unlawful price-fixing. Longfellow was later subpoenaed to testify before a grand jury
about the communications he previously had with the regional sales representatives.
May he do so?

38. Angus and Bane jointly consulted an attorney on a problem that concerned both of
them. The attorney was unable to help them resolve their problem amicably, and
Angus ultimately sued Bane. Is it true that in this litigation neither Angus nor Bane
can claim the attorney-client privilege regarding communications they had with the
attorney?
184. REVIEW QUESTIONS

39. Client Custer told attorney Ames in confidence that he had figured out a way to tap a
local bank’s computer records and to transfer funds from other accounts to his own.
Custer asked for Ames’s legal services in devising a money laundering operation for
the funds thus transferred. Ames refused to assist Custer. Ames’s state has adopted
the ABA Model Rules. May Ames warn the bank of Custer’s scheme?
40. Dornan and Demming were charged with acting jointly to defraud the United States
Postal Service. They asked the firm of Apelt & Aluss to defend them at their joint
trial. The testimony of witness Woeler will implicate Dornan but will exculpate Dem-
ming. Would it be proper for partner Apelt to defend Dornan and for partner Aluss
to defend Demming?
41. Attorney Argus has her office in a small town where there are only two other lawyers.
She represents Cox in a suit for partition of some real property. While that suit is
pending, Cramer asks Argus to represent her in a personal injury suit against Cox. Is
Argus subject to disqualification if she represents Cramer without obtaining Cox’s
consent?
42. Attorney Acosta represents Poponovich in a suit against Detroit Investors Corporation.
While that suit is pending, another client offered Acosta a 10% ownership interest in
Detroit Investors in lieu of a fee the other client owed Acosta. If Acosta accepts the
10% ownership interest without obtaining the signed written consent of Poponovich,
will Acosta be subject to discipline?
43. Lawyer Lundstrum represented Dreggs at his trial for the murder of 10 schoolboys.
After the trial and all possible appeals, Lundstrum acquired the right to publish a
book about the case. Is Lundstrum’s conduct proper?
44. Client Courbert was severely injured when he was struck by a golf ball while watching
a celebrity golf tournament. Attorney Addison agreed to represent him in a personal
injury suit, to do the work for a contingent fee, to pay Courbert’s medical bills, and
to advance the costs of the litigation. Is Addison subject to discipline?
45. Lawyer Lutza represented four physicians in a medical malpractice case. The plaintiff
offered to settle the case for a lump sum of $1.1 million. Because the liability seemed
clear and the injuries were very serious, the insurance carrier for the four defendants
agreed to contribute $1 million toward settlement. Three of the physician defendants
agreed to contribute the other $100,000. Lutza did not consult the fourth physician
about the settlement until after it was accomplished because Lutza knew that the
fourth physician would contribute nothing and would insist on taking the case to
trial. Was Lutza’s conduct proper?
46. The city of Pautuckette brought a lawsuit to close down and dismantle the Inglewood
Rendering and Glue Works on the grounds that it was a public nuisance and a source
of noxious odors. Practitioner Pugh agreed to defend the Inglewood corporation in
the case in return for 12% of Inglewood’s common stock. Assuming that the value
of the stock is less than a reasonable fee would be, is Pugh’s conduct proper?
47. Lawyer Lim was employed on the in-house legal staff of Marketway Stores, Inc., for
five years. He was assigned to handle all of Marketway’s labor law matters. Later
 REVIEW QUESTIONS 185.

Lim entered private practice in partnership with lawyer Lee. Lee was asked to rep-
resent the plaintiff in an employment discrimination action against Marketway. The
alleged discriminatory acts took place while Lim was still working for Marketway. If
Marketway provides informed consent, confirmed in writing, may Lee take the case?

48. Lawyer LaRosa was one of three attorneys who defended Pakilite Fabrics Corp. in
a series of suits concerning flammable pajama fabric sold by Pakilite. Several years
later, LaRosa left her former law firm and entered solo practice. She was asked to
represent client Cantrell in a suit against Pakilite concerning flammable raincoat fab-
ric. Pakilite used the same chemicals to treat both the pajama fabric and the raincoat
fabric. May LaRosa represent Cantrell without Pakilite’s consent?

49. For three years following her graduation from law school, attorney Alcock worked
for the State Internal Revenue Department. One of the cases that occupied a substan-
tial amount of her time was State v. Devereaux Industries, a complex inventory tax
matter. Later, Alcock quit government service and entered private practice with the
Cerle & Meros firm. Devereaux Industries asked senior partner Meros to represent
it in an appeal of the inventory tax case to the United States Supreme Court. May
Meros represent Devereaux, provided that Alcock does not work on the appeal?

50. Attorney Aikawa was the in-house general counsel of MacroComp, Inc., and was
gathering information to be included in an SEC disclosure statement. In doing so,
Aikawa discovered that one of MacroComp’s vital manufacturing steps was clearly
infringing two patents held by one of the company’s competitors. Aikawa informed
MacroComp’s president of this new development, and she advised the president that
the securities laws require such information to be disclosed. After checking to make
sure no one else knew of the infringement, the president told Aikawa: “For the good
of the company, and for my sake, and for your own sake, I am instructing you simply
to forget what you have learned. May I have your promise to do that?” Under the
ABA Model Rules, must Aikawa do as the president has asked?
51. Is it true that a lawyer is subject to discipline for depositing clients’ funds in an
interest-bearing time-deposit account?

52. When lawyer Stillwater agreed to represent the Minnequa Tribe in a fishing rights
dispute, the tribe gave him a $5,000 advance to cover future litigation expenses. Would
it be proper for Stillwater to deposit the advance in his client trust fund account?

53. When attorney Ayala settled a personal injury case on behalf of his client, Cooper,
the defendant sent Ayala a check for $12,000. At the outset, Ayala and Cooper had
agreed that Ayala’s fee would be one-third of the eventual recovery in the case. When
Ayala received the check, he cashed it, deposited $4,000 in his personal checking
account, and deposited the other $8,000 in his client trust fund account. Did Ayala
handle the matter properly?

54. Solo practitioner Pendergast told her legal secretary, Brett, to manage her client trust
account and to keep the appropriate records in an office ledger book. When Pendergast
suddenly learned that the account was overdrawn, she found that, over a period of 18
months, Brett had been keeping the records by the “shoebox” method—a shoebox
186. REVIEW QUESTIONS

filled with a tangle of deposit receipts, cancelled checks, unverified bank statements,
and mysterious notes written on scraps of waste paper. Is Pendergast subject to dis-
cipline?
55. Client Coddlemeyer asked lawyer Lutza to draft him a new will in which Coddle­
meyer’s daughter would receive nothing. Lutza was aware that Coddlemeyer, a trucu-
lent old scoundrel, had convinced the daughter to give up her job in the big city to
return home to care for Coddlemeyer in his old age. Would it be proper for Lutza to
point out the moral, as well as the legal, implications of disinheriting his daughter?

56. In the case described above, suppose that Lutza is unable to convince Coddle­meyer
to change his mind. Would it be proper for Lutza to refuse to draft the new will for
Coddlemeyer?

57. In the case described above, suppose that Lutza is unable to convince Coddle­meyer
to change his mind. Would it be proper for Lutza to tell the daughter of her father’s
plan in an effort to remedy whatever has come between the two of them?

58. Professors Herch, Loomis, and Jantrell jointly wrote a treatise on the aboriginal
cultures of North America. The three authors were unable to come to an agreement
on who should receive primary credit for the work and on how the publication royal-
ties should be divided among them. Therefore, the three asked attorney Abberman
to help them work out a mutually acceptable compromise. May Abber­­man serve in
this role?

59. Client Cullen asked lawyer Langtree to represent her as plaintiff in a medical mal-
practice action against a physician and others who helped deliver her first child. Based
solely on the physical condition of the mother and child immediately after the birth,
it appeared that some malpractice had been committed—aside from that, Langtree
could obtain no other information about what had happened in the delivery room.
Would it be proper for Langtree to file a malpractice action?

60. Attorney Atherton represents the plaintiff shareholders in a shareholder derivative

action. After 18 months of intensive discovery, Atherton’s clients instructed him to
prepare and file a massive fifth set of interrogatories. When he protested that a fifth
set of interrogatories would be a patent waste of time and money for everyone con-
cerned, they responded: “Our adversaries can’t hold out much longer; if we make it
expensive enough, they will come begging to settle.” Is Atherton subject to litigation
sanction if he prepares and files a fifth set of interrogatories?

61. Is it true that a lawyer is subject to discipline for citing a case to the court knowing
that the case does not stand for the proposition for which it is cited?

62. Under West Dakota law, a defendant cannot appeal from an adverse money judgment
in a civil case without first posting an appeal bond in a sum equal to the judgment.
Trial courts, however, routinely waive the appeal bond if it appears that the defendant
is solvent and can pay the judgment if the appeal is unsuccessful. Lawyer Loutson
requested such a waiver based on his client’s affidavit. The affidavit incorporated a
statement of net worth that materially understated the client’s liabilities. Loutson knew
 REVIEW QUESTIONS 187.

of this inaccuracy and knew that his client was in a precarious financial condition.
Is Loutson subject to discipline?

63. Is it true under the ABA Model Rules that a lawyer must allow his criminal defendant
client to testify even if the lawyer knows that the client will testify falsely?

64. Lawyer Lucinda represents defendant Dodgeville Motor Company in a products

liability action brought by plaintiff Paul. Paul had purchased the new model Z
manufactured by Dodgeville. Two weeks after his purchase, Paul was injured when
his car crashed into a stoplight because the brakes had failed. Paul has requested all
documents and reports pertaining to the design and manufacture of the model Z.
Dodgeville’s president, Dufus, gives Lucinda a report that indicates that the brakes
on the model Z failed in half of the model Z’s test drives (Dufus ignored the report
and released the model Z for sale without redesigning the brakes). Lucinda tears up
the report and tells Dufus: “Forget that this report ever existed or you won’t stand a
chance at trial!” Is Lucinda subject to criminal liability?

65. Attorney Ahern was preparing a summary judgment motion on behalf of her client.
She needed an affidavit of her client to establish certain facts, but the client had just
left the state for a five-week vacation. Ahern, therefore, prepared the affidavit and
signed her client’s name to it. Ahern had her secretary notarize the affidavit, and
Ahern filed it with the court along with the other summary judgment papers. Every-
thing stated in the affidavit was true, and the client would happily have signed it had
he been there to do so. Was Ahern’s conduct proper?

66. Lawyer Lew represents the plaintiff in an automobile case pending in Hawaii. Plain-
tiff’s key witness is Werner. Werner lives in Iowa, and she saw the accident while
vacationing in Hawaii. May Lew have his client pay Werner’s airfare, hotel, meal,
and other expenses incurred in coming back to Hawaii to testify at the trial?

67. The State Air Quality Control Board has brought a civil action against Elmore Electric
& Power Company for polluting the air with the discharge from its generating plant
smokestacks. Attorney Ackroid is defending Elmore. Ackroid asks Elmore to advise
all of its employees that they need not talk about the case with anyone representing
the Air Quality Control Board, and that if any such person attempts to interview
them, they should contact Ackroid. Is this proper?

68. At the jury trial of a civil action against Donato Linen Supply Corp., one of the defense
witnesses was old Mr. Donato, the founder and majority shareholder of the company.
Everyone in town knows that 25 years ago, Mr. Donato served time in jail for tax
fraud, and common gossip has it that he was also once connected with organized crime.
At the final pretrial conference, the trial judge ordered plaintiff’s lawyer, Lippert, not to
refer to either of these matters at the trial, holding that they were too far distant in the
past to be used fairly for impeachment. In his closing argument to the jury, Lippert
said: “You jurors are probably all aware of Mr. Donato’s unsavory background—but
you should not consider that in deciding whether to believe what he told you on the
witness stand. Who knows, he may have changed in his old age.” Is Lippert subject
to discipline?
188. REVIEW QUESTIONS

69. Lawyer Langdon defended Dostert Manufacturing Company in a Robinson-Patman

Act price discrimination case. The plaintiff requested production of Dostert’s copies
of the invoices for all of Dostert’s sales over the relevant four-year period—more than
35,000 individual pieces of paper. Langdon agreed to furnish plaintiff’s counsel with
xerographic copies of the invoices (made at plaintiff’s expense), and Langdon agreed
further to keep the original invoices available at Dostert’s offices, should plaintiff
need to examine them. At Dostert’s offices the invoices were filed in chronological
order in labeled file drawers. Before Langdon turned the xerographic copies over to
plaintiff, he instructed his assistant to thoroughly shuffle the copies so as to put them
in a purely random order. Langdon’s object was to make it difficult and expensive for
plaintiff to find out anything useful from the invoices. Is Langdon subject to litigation
sanction?

70. Is it true that, in arguing a case to the jury, a lawyer may state personal opinions, as
long as they are supported by evidence in the record?

71. During the recess between the morning and afternoon sessions of a jury trial, lawyer
Luban went to a local delicatessen for lunch. The delicatessen was crowded, and
Luban found himself seated at a table with two jurors in the case he was trying. To
avoid embarrassment, Luban greeted them in an ordinary way, and the three of them
chatted over lunch about the local baseball team’s chances of ending up in the World
Series. Is Luban subject to discipline?

72. Judge Jordach was assigned to preside at the trial of a notorious police brutality case
that had received a vast amount of coverage in the national media. Prosecutor Prunella
held a press conference at which she discussed the evidence that the prosecution would
offer at the trial and expressed her personal opinion that the “defendants have lied
about this matter repeatedly; they are guilty as sin, and the jury will soon find that
out.” Is Prunella subject to discipline?

73. Lawyer Lindner is plaintiff Papman’s trial counsel in a civil rights action where there
is a fee-shifting statute that makes the loser pay the winner’s attorneys’ fees. The jury
awarded Papman a large sum, and the judge then called for evidence on attorneys’
fees. May Lindner take the witness stand and testify about the number of hours she
spent on the case and the rates she ordinarily charges for similar work?

74. Midway through the trial of a criminal case, defense lawyer Lucero overheard the
prosecutor tell a witness: “Listen, buddy, if you don’t stick to the story we rehearsed,
you will spend the rest of this century in a prison cell.” Lucero was the only person
who overheard the prosecutor’s threat. May Lucero testify about what he heard and
still continue to serve as trial counsel for the defense?

75. Does a prosecutor have a duty to assure that criminal suspects are told how to secure
legal representation?

76. When a member of the bar is acting as a lobbyist, and not as an attorney, is she subject
to discipline for conduct that violates the rules of legal ethics?
 REVIEW QUESTIONS 189.

77. Client Cejay hired attorney Arbor to represent her in connection with the sale of a
controlling block of stock in Ceamus Corporation. Cejay authorized Arbor to sell
the stock for $30 per share, or more if possible. When the lawyer for a prospective
buyer telephoned Arbor and offered $28 per share, Arbor responded: “I’m sorry, but
you are not even in the ballpark. This is a controlling block of stock, and it’s worth
at least $45 per share.” Is Arbor subject to discipline for misrepresentation?

78. Carl and Cora hired separate counsel to represent their respective interests in their
divorce proceedings. One Saturday afternoon, Carl was unable to reach his own
lawyer, so he telephoned Cora’s lawyer to ask a simple question about a proposed
division of the marital assets. Cora’s lawyer refused to discuss the matter with Carl
and told him to call his own lawyer on Monday morning. Should Cora’s lawyer have
responded differently?

79. Lawyer Lutenberger agreed to represent Price for a one-third contingent fee in a per-
sonal injury action against Dolen. Lutenberger told Price that his claim against Dolen
was worth at least $100,000 if settled before trial. The case dragged on for several
years, despite several settlement efforts by the lawyers for the respective parties. Fi-
nally, Price became impatient, got in touch with Dolen directly, and agreed with Dolen
to settle for $50,000. When Price told Lutenberger about the settlement and asked
Lutenberger to prepare the settlement papers, Lutenberger was outraged. He refused
to draw up the settlement papers, and he promptly sent Price a bill for $33,333. Was
Lutenberger’s conduct proper?

80. Attorney Arundale was representing two engineers, Enman and Erwin, in seeking venture
capital for their new medical equipment company. Potential investor Ibbersole (who
was not represented by a lawyer in the matter) asked Arundale what risks she would
be taking if she invested in the company. Would it be proper for Arundale to advise
Ibbersole in this matter?

81. Young lawyer Lacy was assisting senior partner Parner in a civil case. Parner assigned
Lacy to take the deposition of a nonparty witness, Woeford. Because it was Lacy’s
first deposition, Parner accompanied her to provide advice and assistance. Counsel
for the adversary party was present at the deposition, but witness Woeford was not
represented by counsel. During a recess in the deposition, Parner instructed Lacy to
ask Woeford to reveal what Woeford had told his wife about a certain matter. Lacy
protested, pointing out that Woeford’s communications with his wife are protected
by the marital communications privilege and that they could not lead to relevant evi-
dence in any event. Parner responded: “Do as I say. Woeford probably doesn’t know
about the privilege. Even if he does, your questions will get him rattled and upset, and
he may blurt out something that could be useful to us.” Should Lacy follow Parner’s
instructions?

82. With reference to private law firms, is it true that the term “member of the firm”
usually means the same as “associate”?

83. Is it true that a nonlawyer employee of an incorporated law firm may be a shareholder
in the firm?
190. REVIEW QUESTIONS

84. Is it true that a lawyer is subject to discipline for failing to do 50 hours per year of
pro bono work?

85. Attorney Adelano opened her own law office in a neighborhood shopping center. She
announced the opening of the office by distributing circulars door-to-door at every
house in the neighborhood. The circulars invited everyone in the neighborhood to
attend an “office warming party” to meet Adelano and to celebrate the opening of
her office. Is Adelano’s conduct proper?

86. Shortly after attorney Andrews opened his solo law practice in Bakersburg, 1,250
students from Bakersburg City College were arrested during a demonstration to protest
the use of United States military personnel in Central America. Andrews visited one
of the demonstration leaders in the city jail and offered to defend all of them without
charging any fee. Is Andrews subject to discipline?

87. Lawyer partners Layton and Letonen have both been certified as specialists in crimi-
nal defense work by the American Institute of Criminal Defense Counsel, a private
organization that has rigorous, carefully enforced standards for certifying specialists.
The state in which Layton and Letonen practice has no program for approving private
certification agents, and the organization has not been approved by the ABA. In their
law firm advertising material, may Layton and Letonen state that they are “Certified
Specialists in Criminal Defense”?

88. Is it true that, because federal judges hold office for life during good behavior, the
only way a federal judge can be disciplined for misconduct is through impeachment
proceedings?

89. Judge Jarmon’s staff includes an attractive young woman, attorney Lightner. When
Lightner is present in chambers during the judge’s conferences with male attorneys,
the judge invariably makes lecherous comments about her. He does not make such
comments in open court or in other public places. May Lightner report Judge Jarmon
to the appropriate authorities?

90. Attorney Allright is a trustee of Welborne College. Allright frequently appears as

counsel in Judge Jerginson’s court. When Allright learned that Judge Jerginson’s
daughter had applied to Welborne, he visited the judge in his chambers and offered
to drive the judge and his daughter up to the campus for a weekend visit and to do all
that he could to make sure that her application was accepted. May Judge Jerginson
accept Allright’s offer?

91. A judge should not comply with a subpoena to serve as a character witness, but a
judge may appear voluntarily as a character witness. Is this a true statement?

92. Judge Jones regularly eats lunch at a local restaurant that refuses to alter its 100-year‑old
policy of reserving some of its space for men only. When the issue became a topic of
heated public debate, Judge Jones publicly stated: “Why should the restaurant have
to bow to political correctness? Women have plenty of other places they can eat.” Is
Judge Jones’s comment proper?
 REVIEW QUESTIONS 191.

93. Justice Juarez is a member of the board of directors of the American Institute for
Mental Health, a nonprofit organization that funds scientific research in the field of
mental health. The Institute’s endowment fund holds 10,000 shares of the common
stock of Carnegie Steel Corporation. Carnegie Steel is the appellant in a case now
pending before Justice Juarez’s court. The appellee in the case is represented by Justice
Juarez’s best friend, lawyer Lee. Should Justice Juarez hear the appeal?

94. When she was appointed to the bench, Judge Jimerson was an active member of the
Cascades Club, a conservation group that is heavily involved in environmental pro-
tection litigation. The club is a party litigant in hundreds of cases pending around the
state, but none of the cases is presently pending in Judge Jimerson’s court. Would it
be proper for Judge Jimerson to serve as treasurer of the organization and to engage
in public fund-raising activities on its behalf?

95. Judge Joiner serves full-time as a United States District Court Judge. When his Aunt
Agnes died, he discovered that she had designated him to serve as attorney for the
executor of her estate. Would it be proper for Judge Joiner to serve in that capacity?

96. Justice Jessup and her husband were invited to attend the State Bar Convention in a
distant state; Justice Jessup was scheduled to be the keynote speaker at the convention.
May she accept an honorarium for giving the speech, and may she accept reimburse-
ment of the expenses that she and her husband incur in attending the convention?

97. Lawyer Lenox would like to be appointed by the Governor to a municipal court
judgeship. Would it be proper for Lenox to contact the Governor to make known his
interest in the position?
 ANSWERS TO REVIEW QUESTIONS 193.

ANSWERS TO REVIEW QUESTIONS

1. YES The highest court of a state, not the state legislature, has inherent final authority to
regulate the legal profession. [Page 1, I.A.1.a.; Stratmore v. State Bar of California, 14
Cal. 3d 887 (1975); and see In re Nellelson, 390 N.E.2d 857 (Ill. 1979)]

2. NO Each federal court has its own bar, and a lawyer must become a member of that bar
before appearing for a client in that court. [Page 2, I.A.2.a.]

3. YES West Carolina has jurisdiction to discipline Oster, even though his conduct may have
taken place elsewhere. [Page 2, I.A.3.; Page 11, I.C.5.a.] If Oster did in fact take a
bribe, then he is subject to discipline because bribery is a crime that involves dishon-
esty and demonstrates his unfitness to practice law. [Page 6, I.C.1.b.]

4. NO The right to practice in one state does not, without more, entitle an attorney to prac-
tice in another state. A lawyer may temporarily practice in a state in which she is not
admitted if: (1) she associates with a local lawyer, (2) she is admitted pro hac vice, (3)
she is mediating or arbitrating a dispute arising out of her home-state practice, or (4)
her out-of-state practice is reasonably related to her home-state practice. [Page 2, I.B.;
Pages 12-14, I.D.1.-2.] Here, Abydos is not associating with a State B lawyer or seek-
ing admission pro hac vice. Moreover, her State B practice is not reasonably related to
her State A practice; neither does it involve mediation or arbitration arising out of her
State A practice. Thus, Abydos may not serve as counsel of record in State B.

5. NO A bar applicant must provide all of the information requested, to the best of her ability.
[Page 2, I.B.1.] In most states, the state bar conducts a routine character investigation
of some or all candidates; the purpose of asking for the addresses where the applicant
has lived is to facilitate this investigation. If Appleby could not remember all of the
addresses and could not obtain them from others in her family, she should simply have
explained that on the application form.

6. NO Aspner’s conduct is a disciplinary violation because it is criminal and demonstrates his

unfitness to practice law. [Page 6, I.C.1.b.] Ordinarily, another lawyer who learns of
such conduct must report it to the appropriate professional authority. [Page 7, I.C.2.]
Here, however, Lavelle knows of Aspner’s conduct only through a privileged com-
munication from Cronin, and he must respect Cronin’s instructions to keep the infor-
mation in confidence. [Page 8, I.C.2.c.; Page 46, III.A.] (Common sense, however,
suggests that Lavelle should explain to Cronin why it is important to have such infor-
mation reported; that may cause her to change her instructions.)

7. NO A lawyer must not assist a nonlawyer in the unlicensed practice of law. [Page 12, I.D.;
Page 15, I.D.5.]
194. ANSWERS TO REVIEW QUESTIONS

8. YES A lawyer may open a law office and establish a systematic and continuous practice in
a jurisdiction in which she is not admitted if the lawyer is a salaried employee of her
only client. Note though that Shelby may not litigate a matter in Tiberon without being
admitted pro hac vice. [Page 14, I.D.3.a.]

9. NO A lawyer must reach an early, clear agreement with the client about the lawyer’s fee
unless the lawyer has regularly represented the client in the past. [Page 28, II.C.1.]

10. NO A lawyer is subject to discipline for charging an unreasonable fee. [Page 29, II.C.2.]
Five thousand dollars seems clearly unreasonable for little or no work in a common
assault and battery case. [See In re Kutner, 399 N.E.2d 963 (Ill. 1979)—attorney cen-
sured for charging $5,000 in similar circumstances]

11. NO If the number of hours spent were the only relevant factor in setting a reasonable fee,
then Alarcon’s fee would seem exorbitant, but many other factors are relevant. [Page
29, II.C.2.a.] No doubt Alarcon’s many years of experience enabled him to do the work
in much less time than other lawyers would have taken. Furthermore, the issuer of mu-
nicipal bonds commonly wants an opinion letter from a recognized expert. Alarcon’s
reputation, built over many years of work, justifies a higher fee than would be charged
by an unknown novice.

12. YES A lawyer may permit a client to pay her fee by credit card. [ABA Formal Op. 00-419
(2000)] [Page 31, II.C.3.d.]

13. NO A lawyer is subject to discipline for using a contingent fee arrangement in a criminal
case. [Page 32, II.C.4.a.1)]

14. NO One proper way to resolve a fee dispute with a client is to submit it to arbitration, and
the client and lawyer may agree in advance to do that. [Page 33, II.C.5.b.3)]

15. NO A lawyer is subject to discipline for splitting fees with another lawyer unless: (1) the
total fee is reasonable; (2) the split is in proportion to the services performed by each
lawyer or some other proportion if each lawyer assumes joint responsibility for the
matter; and (3) the client agrees to the split in a writing that discloses the share each
lawyer will receive. The arrangement described here does not meet all of the above
requirements and, thus, is an impermissible forwarding or referral fee. [Pages 34-35,
II.C.6.c. and 7.]

16. YES The decision to plead either guilty or not guilty to a criminal charge is for the client,
not the lawyer, to make. [Page 36, II.D.3.] Furthermore, Axelrodd may conduct the de-
fense so as to require the prosecutor to prove every element of the crime, even though
Axelrodd may personally believe that Dervish is guilty. [Page 101, VI.A.2.]
 ANSWERS TO REVIEW QUESTIONS 195.

17. YES Leonard is subject to discipline for failing to convey the settlement offer to his client
before rejecting it—settlement is for the client, not the lawyer, to decide. [Page 36,
II.D.3.; Page 40, II.E.1.]

18. NO The decision to move for summary judgment is a tactical decision, and clients normal-
ly defer to their lawyers regarding tactical decisions. If there is a dispute between the
lawyer and client regarding a tactical decision that cannot be resolved, the lawyer may
withdraw as counsel or the client may fire the lawyer. [Page 37, II.D.3.a.] Moreover, if
Lispley files a summary judgment motion that he knows is frivolous, he is subject to
discipline. [Page 100, VI.A.1.]

19. NO The lawyer’s obligations depend on the particular facts and the extent of the client’s
disability. A client with diminished mental capacity may be able to make some kinds
of decisions on her own behalf. In addition, the lawyer has a duty to maintain a normal
lawyer-client relationship with the client so far as possible—treating the client as a cli-
ent. Under some circumstances, the lawyer may be required to seek the appointment of
a guardian for the client. [Pages 38-39, II.D.5.a. and b.]

20. NO An attorney must promptly inform the client of any decision or circumstance that
requires the client’s informed consent. [Page 40, II.E.1.] Also, the attorney should act
with zeal on the client’s behalf; once the attorney has taken on a matter, she should
see it through to completion. [Pages 91-92, V.B.1. and 3.] Adler should have advised
Coleman of the possibility of an appeal, although she might also advise that an appeal
would probably not succeed.

21. YES The law allows a client to fire a lawyer at any time, with or without cause, subject only
to liability for the fair value of the work the lawyer has already done. [Page 43, II.G.1.
and a.] Lugash is subject to discipline for incompetence (if his erroneous advice result-
ed from ignorance of the law) or for disloyalty (if his erroneous advice resulted from a
desire to protect his friend Ahman).

22. YES An attorney may withdraw from representing a client if the attorney considers the cli-
ent’s objective to be repugnant or fundamentally against the attorney’s beliefs. [Page
45, II.G.4.c.]

23. YES ABA Model Rule 1.16(b)(6) permits an attorney to withdraw from representing a client
when the continuation of the representation would impose an unreasonable financial
burden on the attorney. [Page 45, II.G.4.e.]

24. YES Even when the withdrawal results from the client’s reprehensible conduct, the attorney
must take reasonable steps to protect the client’s interests. [Page 45, II.G.5.]
196. ANSWERS TO REVIEW QUESTIONS

25. YES Labor law is of obvious importance to TransCoastal, and a lawyer should keep abreast
of current literature and current developments in the fields of law in which the lawyer
practices. [Page 91, V.A.4.]

26. NO The purposes and issues in a malpractice case are different from those in a disciplinary
proceeding. [Page 93, V.D.1.] (In any event, Admetus could not invoke the collateral
estoppel branch of the res judicata doctrine against Dorner because Dorner was not a
party to the prior proceeding.)

27. NO According to the “Scope” section of the ABA Model Rules, a disciplinary violation
does not itself give rise to civil liability and does not create a presumption that a legal
duty has been breached. However, Lemur’s violation of ABA Model Rules 1.7 and 1.9
is at least relevant to the issue of whether his conduct falls below the applicable stan-
dard of care. [Page 93, V.D.2.]

28. NO An action for legal malpractice can be based on many different theories, including neg-
ligence and breach of contract. Cruz’s contract claim is timely, even though his negli-
gence claim is barred by the two-year statute of limitations. [Page 94, V.D.3.c. and d.]

29. YES A lawyer who purports to be a specialist is held to a higher standard of care than ordi-
nary lawyers—it is the degree of care, skill, and prudence possessed by other lawyers
who specialize in the field in question. [Page 95, V.D.3.d.1)c)]

30. YES If Aisha’s failure to do standard legal research is the legal and proximate cause of in-
jury to her client, she has committed malpractice and is subject to civil liability. [Page
96, V.D.3.d.2)b)] Every first-year law student is taught never to rely on a case without
checking its history through one of the standard research sources.

31. NO In some instances, an attorney’s failure to refer a case to a specialist can constitute
malpractice, thereby subjecting the attorney to civil liability. [Page 96, V.D.3.d.2)c)]
Libel, however, is a routine part of tort law, well within the capacity of a general civil
and criminal practitioner. As long as Arnott’s work met the standard of care of general
practitioners, he should not be held liable for malpractice. [Page 95, V.D.3.d.1)c)]

32. YES Under general partnership principles, as well as the doctrine of respondeat superior,
partner Pough is civilly liable for the negligence of other lawyers in the firm and of
nonlawyer employees. [Page 98, V.D.5.]

33. NO The ABA Model Rules and the vast majority of states do not impose such a duty, but
prudent lawyers carry adequate malpractice insurance in their own self-interest. [Page
98, V.D.6.]
 ANSWERS TO REVIEW QUESTIONS 197.

34. NO Langur is subject to discipline for attempting to free himself from potential malprac-
tice liability in this manner. [Pages 98-99, V.D.7. and 8.] A lawyer who is fired must
promptly return all papers to which the client is entitled, and that includes litigation
files. [Page 45, II.G.5.] (A lawyer may, however, make and retain copies of the files.)

35. NO The information is not protected by the attorney-client privilege because it is not a con-
fidential communication. Fox obtained the information from a third party, not from her
client or an agent of her client. The information is, however, covered by Fox’s ethical
duty of confidentiality. [Page 47, III.B.2.]

36. NO The attorney-client privilege and the ethical duty of confidentiality apply here, even
though no attorney-client relationship ultimately developed. Robul was seeking legal
assistance from Astorian, even though he did not get it. [Page 48, III.C.1. and 2.]

37. NO Longfellow’s communications with the regional sales representatives are covered by
the attorney-client privilege. [Page 48, III.C.2.a.] In the grand jury proceeding, Long-
fellow must claim the attorney-client privilege on Dorsett’s behalf. [Page 51, III.C.6.b.]

38. YES The attorney-client privilege cannot be claimed by either of two joint clients in later
litigation between them concerning the subject of the joint consultation. [Page 52,
III.C.8.c.]
39. NO Under the ABA Model Rules, a lawyer may reveal a client’s confidential information
to the extent necessary to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial financial harm to someone, if the client is us-
ing or has used the lawyer’s services in the matter. [Page 55, III.D.2.d.] Here, Custer
did not use Ames’s services in transferring the funds, and Ames refused to assist in the
money laundering; thus, Ames may not warn the bank of Custer’s scheme.

40. NO A lawyer must not represent a client if the representation creates a concurrent conflict
of interest. A concurrent conflict exists if there is a significant risk that the representa-
tion of one client will be materially limited by the lawyer’s responsibility to another
client. [Page 59, IV.B.1.] This conflict is imputed to other lawyers in the lawyer’s firm.
[Page 58, IV.A.2.]

41. YES Even assuming that the two suits are totally unrelated, an attorney must not represent
one client if the representation of that client will be directly adverse to another client,
without the informed consent of each affected client, confirmed in writing. [Page 60,
IV.B.2.]

42. YES Acosta would be acquiring a pecuniary interest adverse to Poponovich. [Page 72,
IV.C.2.a.]
198. ANSWERS TO REVIEW QUESTIONS

43. YES After a matter is entirely completed, a lawyer may acquire such publication rights.
[Page 75, IV.C.5.]

44. YES The contingent fee and advance of litigation costs are proper, but the agreement to pay
the client’s medical bills is not. [Pages 75-76, IV.C.6.a.-d.]

45. NO An attorney representing co-parties in litigation may not agree to an aggregate settle-
ment without informed consent in a signed writing from each client after disclosure of
the settlement terms. Therefore, Lutza is subject to discipline for failing to consult the
fourth physician about the settlement. [Page 77, IV.C.7.]

46. NO If the suit is lost, Inglewood will be closed down and dismantled. By acquiring 12%
of the stock, Pugh has, in essence, acquired an ownership interest in the subject of the
litigation, which is impermissible under ABA Model Rule 1.8. [Page 73, IV.C.3.]

47. YES Ordinarily, Lee could not handle a matter that was substantially related to work Lim
did for Marketway, but he may do so with Marketway’s informed consent, confirmed
in writing. [Page 80, IV.D.3.]

48. NO An attorney must not oppose a former client in a matter that is “substantially related”
to a matter in which the attorney represented the former client without the former cli-
ent’s informed consent, confirmed in writing. Here, the two matters are “substantially
related” because of the chemicals used to treat both types of fabric. [Page 80, IV.D.3.
and a.] Thus, LaRosa cannot represent Cantrell without Pakilite’s consent.

49. NO Three other conditions must be met as well. Alcock must be screened off from the case,
and she must not be apportioned any part of the fee in the case. Furthermore, the State
Internal Revenue Department must be notified in writing so that it can make sure these
conditions are met. [Page 85, IV.F.2.c.]

50. NO Under the ABA Model Rules, when a lawyer for an organization learns that a person
associated with the organization has acted in a way that violates a duty to the organiza-
tion, the lawyer must ordinarily report the violation to a higher authority in the organi-
zation, or if necessary, to the highest authority in the organization. [Page 129, VIII.G.3.
and a.] Aikawa’s client is the company, not the president. She must not allow the
president to interfere with her legal judgment about how best to protect the company’s
interests. If necessary, she should go over the president’s head to the highest authority
in the corporation, the board of directors. [Page 129, VIII.G.3.a.] Notice that under the
Sarbanes-Oxley Act, Aikawa would be required to report the violation to the organiza-
tion’s board of directors, and she may reveal confidential information concerning the
violation to the SEC. [Page 132, VIII.G.6.e. and f.]
 ANSWERS TO REVIEW QUESTIONS 199.

51. NO Lawyers’ client trust fund accounts are usually ordinary checking accounts, but if a
lawyer is asked to hold a large sum of money for a long period, an interest-bearing
time-deposit account would be appropriate. [Page 133, IX.C.1. and a.]

52. YES ABA Model Rule 1.15 requires such advances to be put into the client trust fund ac-
count. [Page 134, IX.C.2.a.]

53. NO The proper procedure would have been to deposit the entire $12,000 in the client trust
fund account. Ayala was not entitled to withdraw his portion until he rendered an ac-
counting to Cooper and obtained Cooper’s agreement to the amount due. [Page 135,
IX.E.1.]

54. YES Pendergast’s failure to supervise her secretary’s recordkeeping is grounds for disci-
pline. [Page 135, IX.D.; Page 19, I.F.3.; see Gassman v. State Bar of California, 18 Cal.
3d 125 (1976)—attorney disciplined for failing to oversee secretary’s records of client
trust account]

55. YES A lawyer may dispense moral advice as well as legal advice. The client need not accept
it, but the lawyer is entitled to offer it. [Page 121, VIII.A.2.]

56. YES Lutza is not required to render legal services to Coddlemeyer. [Page 26, II.B.] If Lutza
has already entered into an attorney-client relationship with Coddlemeyer, he may
withdraw if he finds Coddlemeyer’s objectives repugnant. [Page 45, II.G.4.c.]

57. NO Lutza would be subject to discipline for breach of the ethical duty of confidentiality if
he revealed the plan to the daughter without Coddlemeyer’s consent. [Page 52, III.D.]

58. YES Abberman may serve as a third-party neutral. A third-party neutral assists two or more
nonclients to resolve a dispute between them. Note that the third-party neutral must
inform all unrepresented parties that he does not represent any of the parties and is not
protecting their interests. [Page 125, VIII.D.1. and 2.]

59. YES As long as Langtree is acting in good faith, it is not frivolous for him to file a malprac-
tice complaint, even though he knows that the evidence needed to back up the com-
plaint can be obtained only through discovery proceedings. [Page 100, VI.A.1.]

60. YES To file a frivolous discovery request solely to harass the adversary is grounds for litiga-
tion sanction. [Page 100, VI.A.1.; Page 107, VI.D.3.]

61. YES Intentionally trying to mislead the court about the applicable law is grounds for disci-
pline. [Page 102, VI.C.1.]
200. ANSWERS TO REVIEW QUESTIONS

62. YES Loutson has knowingly used false evidence. [Page 104, VI.C.4.] Also, because an at-
torney is subject to discipline if he knowingly makes a false statement of fact to the
court, Loutson is also subject to discipline for violating this duty of candor to the tribu-
nal. [Page 103, VI.C.2.]

63. NO Under the ABA Model Rules, a lawyer must first try to persuade his client to testify
truthfully. If that fails, the lawyer may seek to withdraw if that will remedy the situa-
tion, but if withdrawal will not remedy the situation, the lawyer must disclose the situa-
tion to the court. [Page 105, VI.C.4.b.1)]

64. YES It is a crime to suppress or tamper with evidence. Here, Lucinda knowingly destroyed a
report requested by the plaintiff. Lucinda also would be subject to discipline for unlaw-
fully destroying a document having evidentiary value. [Page 106, VI.D.1.]

65. NO Ahern is subject to discipline for using false evidence. [Page 107, VI.D.2.] An affidavit
is supposed to be made under oath and signed by the affiant. Ahern has also corrupted
her secretary, the notary public, by having her attest to the forged signature. [See Gar-
low v. State Bar of California, 30 Cal. 3d 912 (1982)—attorney disciplined for, among
other things, signing client’s name to declaration under oath]

66. YES Except when prohibited by local law, it is proper to pay such expenses incurred by a
lay witness. [Page 107, VI.D.4.a.]

67. YES This is proper, as long as Ackroid reasonably believes that the employees’ interests will
not be harmed by declining to be interviewed. [Page 108, VI.D.5.; and see Page 119,
VII.B.2.—concerning impropriety of interviewing employees of represented adver-
sary]

68. YES Lippert is subject to discipline, both for violating the judge’s order given at the final
pretrial conference and for referring in closing argument to material not in the record.
[Page 108, VI.D.6.; Page 109, VI.D.7.a.]

69. YES Even if Langdon has not technically obstructed plaintiff’s access to evidence, he has
abused the discovery process by destroying the meaningful order of the documents.
[Page 107, VI.D.3.] Here, at the very least, the trial judge would be justified in ordering
Langdon to furnish plaintiff with a new set of copies, properly arranged, at no cost to
plaintiff. Landon also would be subject to discipline for abusing the discovery process.

70. NO A lawyer is subject to discipline for stating personal opinions when arguing a case to
the jury. The proper technique is to point out the relevant evidence in the record and to
let the jurors form their own opinions and conclusions. [Page 110, VI.D.7.c.]
 ANSWERS TO REVIEW QUESTIONS 201.

71. YES During the trial of a case, a lawyer who is connected with the case must not communi-
cate with a juror on any subject. [Page 111, VI.E.2.b.; and see Florida Bar v. Peterson,
418 So. 2d 246 (Fla. 1982)—lawyer disciplined in similar circumstances]

72. YES Prunella is subject to discipline for violating Rule 3.6, which states that a lawyer
connected with a case must not make a public statement outside the courtroom that
the lawyer reasonably should know would have a substantial likelihood of materially
prejudicing a case. [Page 113, VI.F.1.] Furthermore, as a prosecutor, Prunella is subject
to discipline for violating Rule 3.8, which provides that a prosecutor must not make ex-
trajudicial statements that have a substantial likelihood of heightening public condem-
nation of the accused. [Page 113, VI.F.3.; Page 127, VIII.E.6.]

73. YES Trial counsel may testify as a witness if her testimony is limited to the nature and value
of the services she rendered in the case. [Page 115, VI.G.2.b.]

74. YES On the facts given, it is fair to assume that the defendant would suffer substantial hard-
ship if he were forced to obtain a new lawyer in the middle of the trial. Thus, it would
be proper for Lucero to testify and to continue as trial counsel. [Page 115, VI.G.2.c.]

75. YES A prosecutor must make reasonable efforts to assure that the accused is advised of the
procedure for obtaining counsel. [Page 126, VIII.E.2.]

76. YES Attorneys are subject to the rules of legal ethics in whatever capacity they act. Fur-
thermore, when an attorney is acting for a client in the legislative arena, the attorney
must follow the same rules of candor and forthrightness as though in court. [Page 128,
VIII.F.2.]

77. NO A statement like this one is regarded as mere puffery, a conventional bargaining ploy.
[Page 124, VIII.C.1.]

78. NO A lawyer must not communicate about a matter with a represented adversary, absent
the consent of the adversary’s counsel. [Page 118, VII.B.1.]

79. NO Whether to settle a case is a decision to be made by the client, not by the lawyer.
[Page 36, II.D.3.] The rule that prohibits a lawyer from communicating directly with
a represented adversary does not prohibit the parties themselves from communicating
directly with each other. [Page 119, VII.B.3.] Thus, Lutenberger should have drawn up
the settlement papers as Price requested because a lawyer is normally required to see a
matter through to completion. [Page 92, V.B.3.] Furthermore, Lutenberger is entitled to
only $16,666 (one-third of $50,000) as his fee. [Page 31, II.C.4.]
202. ANSWERS TO REVIEW QUESTIONS

80. NO When dealing with an unrepresented person on behalf of a client, a lawyer must not
give legal advice to the unrepresented person if the client’s interests are likely to con-
flict with those of the unrepresented person. [Page 120, VII.C.]

81. NO Parner is asking Lacy to abuse the rights of an unrepresented third person. [Page 120,
VII.D.1.] When an ethics question is reasonably debatable, a junior lawyer may abide
by a senior supervising lawyer’s resolution, but query whether Parner’s position is
reasonably debatable. [Page 20, I.G.2.] As a practical matter, Lacy would be prudent to
ask Parner to explain his position more fully before she decides whether to ignore his
instructions.

82. NO “Member of the firm” usually means the same as “partner” in a law partnership or
“shareholder” in an incorporated law firm. [See page 139, X.A.3.a.]

83. NO A nonlawyer must not own any interest in an incorporated law firm. [Page 22, I.H.3.]

84. NO A lawyer should do such work, but the ABA Model Rules do not impose discipline for
failing to do so. [Page 147, XI.A.]

85. YES If the information in the circulars is true and not misleading, her conduct is proper.
[Page 136, X.A.1.]

86. NO ABA Model Rule 7.3 prohibits solicitation only when a “significant motive” is the
“lawyer’s pecuniary gain.” [Page 143, X.C.1.] (One might argue that Andrews volun-
teered his free legal services in this case with the ulterior motive of seeking publicity
and thus luring fee-paying clients in other cases. Query whether such conduct could
constitutionally be prohibited.)

87. NO An attorney may state to the public that he is a certified specialist only if the certifying
body has been approved by the state or the ABA. [Page 140, X.A.4.] Here, the state has
no program for approving private certification, and the ABA has not approved the cer-
tifying body; thus, Layton and Letonen may not state in their firm advertising material
that they are certified specialists in criminal defense.

88. NO Federal law authorizes federal judges to be disciplined (by sanctions less drastic than
removal from office) upon recommendation by a specially constituted group of other
federal judges. [Page 153, XII.A.1.]
 ANSWERS TO REVIEW QUESTIONS 203.

89. YES A judge must maintain high standards of personal conduct, both in and out of the court-
room. [Page 155, XII.B.1.; and see Geiler v. Commission on Judicial Qualifications, 10
Cal. 3d 270 (1973)—judge removed from the bench for similar conduct] If the judge’s
conduct raises a substantial question about his fitness for office, a lawyer who learns of
the conduct must report it to the appropriate authorities. [Page 7, I.C.2.]

90. NO A judge must not allow family or social relationships to interfere with the judge’s
conduct or judgments. [Page 156, XII.C.4.] Furthermore, a judge generally should not
accept favors from someone who is likely to appear before the judge. Accepting such a
favor could reasonably appear to undermine the judge’s integrity or impartiality. [Page
170, XII.D.9.]

91. NO The statement is backwards. A judge must not appear voluntarily as a character wit-
ness, but may comply with a subpoena to serve as a character witness. [Page 167,
XII.D.3.]

92. NO Assuming the restaurant has engaged in invidious discrimination, Judge Jones is sub-
ject to discipline for publicly manifesting his approval of it. [Page 168, XII.D.6.]

93. NO The Institute’s ownership of the Carnegie stock does not disqualify Justice Juarez because
a judge may be a director of a nonprofit organization and that organization may own se-
curities of a party appearing in a case before the judge. [Page 164, XII.C.18.d.2)b)] How-
ever, a judge must disqualify himself in a case in which his impartiality might reasonably
be questioned. A judge should disclose any information the judge believes the parties or
their lawyers might consider relevant to the question of disqualification, even if the judge
believes there is no reasonable basis for disqualification. [Page 162, XII.C.18.a.1)] In
this case, the judge’s impartiality can reasonably be questioned by Carnegie, the appel-
lant, because the appellee’s lawyer, Lee, is the judge’s best friend. Thus, the judge should
disclose his friendship with Lee, and if the parties believe that the judge can be impartial,
they can always waive the judge’s disqualification. [Pages 166, XII.C.18.h.]

94. NO A judge shall not serve as an officer of an organization that frequently is engaged in
adversary proceedings in the court on which the judge sits. Assuming that the Cas-
cades Club’s cases often are brought in Judge Jimerson’s court, she should not serve
as treasurer. [Page 168, XII.D.5.(vi)] Also, a judge must not personally participate in
fund-raising activities for an organization, except for soliciting funds from members of
the judge’s family or from other judges who are not under her supervisory or appellate
authority. [Page 168, XII.D.5.(ii)]
204. ANSWERS TO REVIEW QUESTIONS

95. NO A full-time judge must not practice law. [Page 172, XII.D.12.] Acting as attorney for
the executor of Aunt Agnes’s estate probably does not fall within the limited exception
that allows a full-time judge to render some kinds of uncompensated legal service for
family members.

96. YES She may accept the honorarium if it is reasonable and commensurate with the task per-
formed, and she may accept reimbursement of reasonable expenses incurred by herself
and her husband. (The honorarium and reasonable expense reimbursement here do not
create an appearance of impropriety or of influencing the judge’s performance of her
judicial duties.) [Page 172, XII.D.13., 14.]

97. YES Because Lenox is a candidate for appointive judicial office, he may communicate with
the appointing authority (the Governor). [Page 177, XII.E.3.]
 INSTRUCTIONS FOR PRACTICE EXAMS 205.

INSTRUCTIONS FOR PRACTICE EXAMS

Although we suggest doing practice questions online to simulate the exam experience and get
detailed score information, you may wish to practice offline. Four full practice exams follow. You
have two hours to answer the questions in an exam. An answer sheet is provided after each set
of practice exam questions.

The exams each contain 60 questions, as does the actual MPRE. On the actual exam, 50
questions are scored and 10 are nonscored “pretest” questions. Because you will not know
which are the nonscored questions, you must answer all questions.

Your score will be based on the number of questions you answer correctly. It is therefore
to your advantage to answer as many questions as you can. Use your time effectively. If a
question seems too difficult, go on to the next one. Nevertheless, you should try to answer all
questions because wrong answers are not deducted from the right answers.

As on the actual MPRE, a few questions in each practice exam will measure aspects of the
ABA Code of Judicial Conduct. The remaining questions are designed so that disciplinary
questions can be answered solely under the ABA Model Rules of Professional Conduct,
and questions outside the disciplinary context should be answered under the general law
governing lawyering, including statutory and common law.

Each question may include, among others, one of the following key words or phrases:

1. Attorney usually refers to the particular lawyer whose conduct is at issue. Lawyer in the
same question usually refers to a different lawyer whose conduct is not at issue. Specific
functional names for a lawyer, e.g., litigator, judge, managing partner, associate, prose-
cutor, etc., may also be used if those names do not create ambiguity.

2. 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. In the case of a judge, the test question asks whether the judge would be
subject to discipline under the ABA Model Code of Judicial Conduct.

3. May or proper asks whether the conduct referred to or described in the question is
professionally appropriate in that it: (1) would not subject the lawyer or judge to discipline;
(2) is not inconsistent with the Preamble, Comments, or text of the ABA Model Rules of
Professional Conduct or the ABA Model Code of Judicial Conduct; and (3) is not inconsis-
tent with generally accepted principles of the law of lawyering.

4. Subject to litigation sanction asks whether the conduct described in the question would
subject the lawyer or the lawyer’s law firm to sanction by a tribunal, such as punishment
for contempt, fine, fee forfeiture, disqualification, or other sanction.

5. Subject to disqualification asks whether the conduct described in the question would
subject the lawyer or the lawyer’s law firm to disqualification as counsel in a civil or
criminal matter.
206. INSTRUCTIONS FOR PRACTICE EXAMS

6. Subject to civil liability asks whether the conduct described in the question would
subject the lawyer or the lawyer’s law firm to civil liability, such as claims arising from
malpractice, misrepresentation, and breach of fiduciary duty.

7. Subject to criminal liability asks whether the conduct described in the question would
subject the lawyer to criminal liability for participation in or aiding and abetting criminal
acts, such as prosecution for insurance and tax fraud, destruction of evidence, or
obstruction of justice.

8. When a question refers to discipline by the bar, state bar, or disciplinary authority, it
refers to the appropriate entity in the jurisdiction with authority to enforce the rules of
professional conduct.

9. The phrases client-lawyer relationship and lawyer-client relationship have the same
meaning.
 PRACTICE EXAM 1 207.

PRACTICE EXAM 1

Question 1 Question 2

A full-time judge lives in State A. Her father A young attorney, three years out of law
lives in a retirement home in State B. The judge’s school, had never set foot in a courtroom. The
father told her that several of his friends in the attorney was on the board of directors of a
retirement home had employed an attorney to nonprofit preschool. One of the preschool’s
write wills for them, and that in each will the teachers was charged with felony child abuse
attorney had included a bequest to himself. Each for allegedly molesting three pupils. After
bequest was approximately 50% of the estimated conducting its own careful investigation, the
total value of the person’s probable estate. The preschool’s board of directors concluded that
friends told the judge’s father that they did not the criminal charge was totally unfounded, and
really want to leave the attorney anything, but the board resolved to provide defense counsel
they had assumed it was merely a matter of for the teacher. The young attorney volunteered
routine, a part of the attorney’s compensation to do the work without a fee. A few days before
for drafting the will. The attorney is admitted to the trial was to begin, the attorney became
practice in State B, but not in State A. The judge convinced that he was not competent to serve
did not talk personally with any of her father’s as the teacher’s trial counsel. He asked the
friends, but she believes that her father’s rendi- trial judge for permission to withdraw. After
tion of the story is entirely accurate. thoroughly questioning the attorney about his
preparation for trial, the judge said that while he
Would it be proper for the judge to communi- understood the attorney’s anxiety, he believed
cate directly with the attorney about the matter, that the attorney was perfectly competent to
and if that does not satisfy her, to communicate handle the case. The judge denied the attorney’s
with the attorney disciplinary authority in State motion to withdraw but postponed the trial for
B about the matter? seven days to allow him to complete his prepara-
tion.
(A) Yes, because she has received information
indicating a substantial likelihood that the Instead of doing what the judge ordered, the
attorney has violated a legal ethics rule. attorney advised the teacher that he would not
defend her. He handed her all of the files in the
(B) Yes, because she has personal knowledge case and advised her to retain another attorney.
that the attorney has violated a legal ethics
rule. Is the attorney subject to discipline?

(C) No, because legal ethics violations that take (A) Yes, because he abandoned his client in
place outside State A are not her concern. direct violation of the trial judge’s order.

(D) No, because she is not allowed to commu- (B) Yes, because he undertook a case that he
nicate directly with the attorney about the was not competent to handle.
supposed legal ethics violation.
(C) No, because he believed that he was not
competent to represent his client at trial.

(D) No, because he was working pro bono, not

for a fee.

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208. PRACTICE EXAM 1

Question 3 Question 4

An attorney represented a defendant in a An attorney assigned his secretary to manage

criminal trial. After the jury returned a guilty his client trust account. The attorney gave the
verdict, the defendant was taken to jail and the secretary extensive, detailed instructions about
jury was discharged. While walking to his car, the kinds of records to keep, the kinds of funds
the disappointed attorney spotted one of the that she must deposit, and the kinds of permis-
courtroom spectators in the parking lot. The sible withdrawals that she could make. The
attorney recalled that the spectator had been a attorney had complete faith in the secretary’s
member of the jury pool, but he had exercised ability and honesty, and therefore did not super-
a peremptory challenge against her because he vise the secretary’s management of the account.
instinctively felt that she would vote against the Three years later, during an audit, it was discov-
defendant. Despite not being selected as a juror, ered that on 18 different occasions during
the spectator developed an interest in the case that period, the account balance fell below
and had attended the entire trial. the amount that should have been there. The
attorney was unaware of these occasions until he
In an attempt to determine whether his received a copy of the audit.
instinct during jury selection was correct, the
attorney approached the spectator and asked Is the attorney subject to discipline?
her whether she would have voted to convict the
defendant. The spectator said, “I’d rather not talk (A) Yes, because he did not adequately super-
about it.” When the attorney explained that he vise the secretary.
was simply looking for constructive feedback,
the spectator changed her mind and agreed to a (B) Yes, because a lawyer must manage his
brief interview. The attorney and spectator spoke client trust account himself.
for a few minutes, and the communication did
not involve misrepresentation, coercion, duress, (C) No, because he took reasonable steps to
or harassment. train the secretary and did not realize that
the account balance had fallen below the
Is the attorney subject to discipline? proper level.

(A) Yes, because the spectator initially declined (D) No, because he did not have actual knowl-
to speak with the attorney. edge that the secretary was not performing
the account management function properly.
(B) Yes, because post-trial contact with
prospective jurors is prohibited.

(C) No, because the communication did not

involve misrepresentation, coercion, duress,
or harassment.

(D) No, because the spectator was not chosen

for the jury.

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 PRACTICE EXAM 1 209.

Question 5 Question 6

A potential client consulted an attorney, A client hired an attorney to do the legal work
hoping to hire her to represent him as plain- in connection with a complex public securi-
tiff in a medical malpractice action against his ties offering. The attorney agreed to do the
doctor. Without mentioning the doctor’s name, work for a set hourly fee. The attorney did a
the client described the alleged acts of malprac- great deal of legal research, prepared numerous
tice and said that they happened more than two memoranda of fact and law, and drafted most of
years ago. Only at that point did the potential the documents needed for the public offering.
client mention his doctor’s name. The attorney At that point, the client became angry with the
immediately stopped the potential client and said attorney for no apparent reason and fired him.
she could not represent him because she was The client paid the attorney at the agreed rate for
already representing the doctor in an unrelated the work the attorney had done and demanded
matter, and she urged him to consult another that the attorney turn over to him the papers that
lawyer. That was the end of the conversation. the attorney had prepared, including the legal
The potential client did nothing further for 15 and fact memoranda and the document drafts.
months, at which point he consulted another
lawyer. By that time, the statute of limitations What papers must the attorney turn over to the
had run on the potential client’s claim against client?
the doctor. The potential client then sued the first
attorney for legal malpractice, alleging that the (A) Only the document drafts, but not the legal
attorney was negligent in not warning him about and fact memoranda.
the statute of limitations.
(B) Only the legal and fact memoranda, but not
Is the attorney subject to civil liability in the the document drafts.
potential client’s malpractice case?
(C) None of the papers, because the client fired
(A) No, because the attorney did what a rea- the attorney.
sonably prudent lawyer would do in the
circumstances—decline to represent the (D) All of the papers, even though the client
potential client and suggest that he consult fired the attorney.
other counsel.

(B) No, because the potential client never

became the attorney’s client and is therefore
not a proper plaintiff in a malpractice action
against the attorney.

(C) Yes, because the attorney had no legal or

ethical reason to reject the potential client
as a client and therefore had a duty to warn
him about the statute of limitations.

(D) Yes, because a reasonably prudent lawyer

would have foreseen that the potential client
might delay in consulting another lawyer.

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210. PRACTICE EXAM 1

Question 7 Question 8

A judge serves on a state trial court that A law student is applying for admission to the
has nine other judges. Her husband is a life State A Bar. When the law student was in high
insurance salesman for a large life insur- school, he and his parents lived in State B. His
ance company. The life insurance company is next door neighbor was an attorney admitted
occasionally a litigant in the court on which the to practice in State B, but not in State A. The
judge sits. Every year the life insurance company attorney knew that during the law student’s
runs a national sales contest in which the person senior year in high school, he was convicted
who sells the most life insurance during the of burglarizing a liquor store. After serving
year receives a valuable prize. The judge’s his sentence, the law student went to college
husband won this year and took the judge on an and later to law school. The attorney has had
all-expenses-paid vacation in Europe. She did no contact with the law student since his high
not make a public report of the prize. school years, and as far as she knows, the
law student has not done anything since high
Was it proper for the judge to allow her school that would reflect badly on his character.
husband to accept the prize and take her on the The Bar of State A sent the attorney a routine
European vacation? questionnaire, asking a series of questions about
the law student’s character. The attorney does
(A) Yes, because acceptance of the prize cannot not know whether the law student disclosed the
reasonably be perceived as undermining burglary conviction on his bar application, and
the judge’s integrity or impartiality. she does not know where to contact him to find
out.
(B) Yes, because the prize was won by her
husband, not by the judge. Which of the following would be a proper
response to the questionnaire?
(C) No, because the judge did not make a
public report of the prize. (A) She should not respond at all because she
has no relevant information to provide.
(D) No, because the life insurance company
may later appear as a litigant in the court on (B) She should not respond at all because as
which the judge sits. a State B lawyer she is not obligated to
provide information to the Bar of State A.

(C) She should not mention the law student’s

burglary conviction in her response unless
she first contacts him and obtains his
permission to do so.

(D) She should state what she knows about

the law student, including mention of his
burglary conviction.

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 PRACTICE EXAM 1 211.

Question 9 Question 10

An attorney received her law degree two Two years ago, when a couple divorced in
years ago from a small local college of law and State A, the court awarded the wife custody of
technical sciences. Last summer she attended a the three children and ordered the husband to
three-day trial practice seminar at the Harvard pay the wife $3,000 per month in child support
Law School. During her brief career, she has and alimony payments. The husband failed
tried five cases—two jury trials and three bench to make the $3,000 payments for 17 months
trials. She won both of the jury trials and two of in a row. In desperation, the wife hired a new
the three bench trials. attorney to represent her in a proceeding to
collect the past due payments from the husband.
The attorney placed an ad under the subject State A has no law or court rule that requires
heading “Trial Lawyers” in the classified pages the loser to pay the winner’s attorneys’ fees in
of the local phone book. Her ad states in relevant domestic relations matters. Because the wife
part: had no money to pay her new attorney a regular
fee, the new attorney agreed to do the work on a
Trial Attorney contingent fee basis for 10% of whatever amount
Harvard Trained the wife was ultimately able to recover. The new
Never Lost a Jury Trial attorney won an award for the wife of the entire
amount due ($51,000), and by tracking down
Which of the following is correct? and attaching the husband’s secret bank account,
he got the full amount paid to the wife. He then
(A) To make the ad proper, the references to sent the wife a bill for his share, $5,100.
“Harvard Trained” and “Never Lost a Jury
Trial” must be deleted. Is the wife’s new attorney subject to disci-
pline?
(B) To make the ad proper, the references to
“Trial Attorney” and “Harvard Trained” (A) No, as long as $5,100 is a reasonable fee
must be deleted. for the work he did.
(C) To make the ad proper, the references to (B) No, because the wife had no money to pay a
“Trial Attorney” and “Never Lost a Jury regular fee.
Trial” must be deleted.
(C) Yes, because the new attorney used a
(D) The ad is proper as written. contingent fee in a domestic relations
matter.

(D) Yes, because the new attorney took a

portion of the money that was intended for
support of the wife and the children.

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212. PRACTICE EXAM 1

Question 11 (C) No, because the attorney entered into a

business transaction with the client.
An attorney regularly represented an older
client in matters relating to the investment of (D) No, because the attorney drafted the deed
the client’s considerable wealth. The client told that bestowed a substantial gift on himself.
the attorney that he wanted to put $500,000 into
a sound, income-producing investment. The Question 12
attorney suggested that the two of them pool
their money and talent and buy an apartment For the past five years, an attorney has
house. The attorney would put up $75,000 and represented an art dealer in the sale of many
do the legal work, and the client would put up valuable paintings. One of the major transactions
$500,000 and serve as the live-in manager of occurred three years ago, when the art dealer
the apartment house. The client enthusiastically sold a landscape purportedly painted by Vincent
agreed to the arrangement and told the attorney van Gogh to an art museum for $23 million. The
to draw up the papers. museum subsequently resold the painting for $35
million.
The attorney drafted an agreement between
Now the art dealer has asked the attorney to
himself and the client, negotiated the purchase
do the legal work in connection with the sale of
of the apartment house, and drafted a deed from
another landscape, also a purported van Gogh.
the seller to himself and the client as joint tenants
The proposed purchase price is $12 million, and
with right of survivorship. The attorney gave
the prospective purchaser is a wealthy televi-
the client a carefully written explanation of the
sion personality who knows nothing about art.
terms of the transaction, but he forgot to explain
During a confidential conversation in the attor-
the significance of the joint tenancy, i.e., that
ney’s office, the attorney asked the art dealer if
upon the death of one joint tenant, the property
he had appraisal letters certifying the painting
would pass automatically to the other joint tenant.
as a genuine van Gogh. The art dealer replied
The attorney advised the client, in the writing
that he indeed had letters—letters he had forged
explaining the terms of the transaction, to have
himself—and that he had also forged the letters
an outside lawyer look over the transaction, and
for the purported van Gogh sold to the art
he also urged him orally to do so. However,
museum. When the attorney inquired further,
the client said that he trusted the attorney and
the art dealer told him in confidence that both of
signed all of the papers without further ado. The
the purported van Gogh paintings were in fact
attorney and the client operated the apartment
counterfeits created by a clever art student.
house successfully for several years, until the
client died. The executor of the client’s estate Which of the following must the attorney do
sued the attorney to have the apartment house at this point?
declared part of the client’s estate, but the court
concluded that the joint tenancy created a gift to (A) Report the art dealer to the law enforce-
the attorney, effective on the client’s death. ment authorities.
Were the attorney’s actions proper? (B) Warn the prospective purchaser about the
proposed sale.
(A) Yes, because the court concluded that the
joint tenancy created a gift from the client (C) Inform the art museum of the truth about
to the attorney. the first painting.

(B) Yes, because the attorney might have died (D) Refuse to represent the art dealer in the
first, thus bestowing a gift on the client. present transaction.

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 PRACTICE EXAM 1 213.

Question 13 Question 14

Two years ago, an attorney represented his An attorney is representing a defendant on

client when he sold his property. Unbeknownst trial for armed robbery of a liquor store. The
to the attorney, the client made some fraudulent defendant tells the attorney in confidence that
statements to the buyer about the value of some at the time in question, he was sitting at home
mineral deposits on the property. The buyer watching television with his aged mother, and
recently discovered the fraud and is now in the that his mother can confirm his alibi. The
attorney’s office threatening to immediately attorney interviews the mother, who solemnly
file a civil fraud suit against both the client and confirms the defendant’s story. After talking
the attorney. The buyer accuses the attorney with her, the attorney strongly suspects that she
of engineering the fraud and helping his client is lying to protect the defendant. The attorney
carry it out. The only way that the attorney can does not know for sure that the defendant and
convince the buyer that he had no part in the his mother are lying, but every instinct tells him
fraud is to tell the buyer a fact that the client that they are. The attorney has warned both of
disclosed to him in the deepest confidence when them about the dangers of perjury, but both have
he was working on the property transaction. insisted that they want to testify to the alibi at
trial.
May the attorney disclose the fact without the
consent of the client? May the attorney call the defendant, or his
mother, or both, as trial witnesses?
(A) No, if doing so will harm the client.
(A) Yes, as to both the defendant and his
(B) No, because doing so would breach his duty mother.
of confidentiality to the client.
(B) Yes, as to the defendant, but no, as to his
(C) Yes, but only after the buyer files the civil mother.
fraud suit against him.
(C) No, as to both the defendant and his mother.
(D) Yes, even if doing so will subject his client
to civil or criminal liability. (D) No, as to the defendant, but yes, as to his
mother.

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214. PRACTICE EXAM 1

Question 15 (C) Yes, because she handled the matter

in accordance with the State A IOLTA
The State A Bar has established an Interest on program.
Lawyers’ Trust Accounts (“IOLTA”) program,
whereby lawyers deposit client trust funds into (D) Yes, because the client was not harmed.
special client trust accounts that pay interest to
the State A Bar, which then uses the money to Question 16
help fund legal services for poor people. The
program requires lawyers to deposit a particular A new associate at a law firm was asked to
client’s funds in an IOLTA account unless the help a partner advise a state university on how
funds would earn more than $50 in interest to comply with a federal statute that requires
during the time they are entrusted to the lawyer. colleges and universities to make many changes
If the client’s funds would earn more than $50 in in their facilities to accommodate students with
interest during that time, the lawyer must deposit disabilities. After graduating from law school,
them in a separate interest-bearing trust account the associate had worked on the congressional
and pay the interest to the client. staff of a United States senator. In that role, she
personally drafted a bill that was ultimately
An attorney settled a personal injury case enacted as the federal statute.
brought by her client. The defendant sent the
In light of the associate’s earlier role as the
attorney a check for $9,000. Because she was
drafter of the federal statute, which of the two
leaving that day for a one-month vacation, the
lawyers may work on the matter?
attorney instructed her assistant to deposit the
check in the attorney’s IOLTA account. The (A) Neither the partner nor the associate.
assistant is authorized to make deposits to and
withdrawals from the account. The attorney did (B) The partner only, and only if the associate
not tell her assistant to notify the client that the is properly screened off from the matter.
check had arrived. When the attorney returned
a month later, she notified the client that the (C) Both the partner and the associate.
check had been received, and the client came
to the attorney’s office that same day to collect (D) The partner only, and only if the state
the $9,000. At the prevailing rate of interest, the university consents after full disclosure.
$9,000 would have earned $40 during the month
that the attorney was gone.

Was the attorney’s handling of the matter

proper?

(A) No, because she should have instructed her

assistant to deposit the check in a separate
trust account that would earn interest for
the client.

(B) No, because she should have instructed her

assistant to notify the client promptly that
the check had arrived.

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 PRACTICE EXAM 1 215.

Question 17 Question 18

An insurance company offers a legal services An attorney represented a landlord in a

insurance policy. In return for a yearly premium, dispute with her longtime tenant, who had
an insured will be reimbursed by the insur- recently decided not to renew his lease. The
ance company for a specified amount for legal landlord wanted to retain the security deposit
services during the year. The insured selects to pay for extensive damage to the carpeting,
a lawyer from a list of “authorized providers” while the tenant insisted that the damage was
supplied by the insurance company. Any lawyer normal wear and tear. The attorney and the
who agrees to follow a maximum fee schedule tenant’s lawyer negotiated for days, but neither
set by the insurance company can become an party would settle for less than two-thirds of the
“authorized provider.” The insurance company security deposit. Finally, the landlord telephoned
solicits insurance sales by in-person and live the attorney and said: “The tenant asked if I
telephone contact with potential insurance want to talk about the security deposit. We’ve
buyers, working systematically through local known each other for years, and I think we
telephone directories. might have better luck if we work things out
ourselves.” The attorney encouraged the landlord
Will an attorney be subject to discipline if he to talk with the tenant if she thought it would
becomes an “authorized provider” and receives help, but advised her not to finalize any agree-
clients through the insurance company’s insur- ment until both parties could consult with their
ance plan? respective counsel. The landlord and tenant had
a productive discussion. The following day, the
(A) No, because the insurance company does tenant’s lawyer called the attorney and said the
not specifically target persons whom it tenant would accept one-half of the security
knows are in need of legal services in a deposit. The attorney communicated the offer to
particular matter covered by its insurance the landlord, who agreed and returned the funds
plan. to the tenant.
(B) No, because the insurance company’s Is the attorney subject to discipline?
insureds are allowed to select whatever
lawyer they wish from among the “autho- (A) Yes, because the attorney encouraged the
rized providers.” landlord to speak to the tenant without ob-
taining the consent of the tenant’s lawyer.
(C) Yes, because the insurance company uses a
specified maximum fee schedule. (B) Yes, because the attorney encouraged the
landlord to speak to the tenant without
(D) Yes, because the insurance company uses notifying the tenant’s lawyer.
in-person and live telephone solicitation to
get business. (C) No, because the tenant initiated the conver-
sation with the landlord.

(D) No, because the landlord and tenant spoke

to each other directly.

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216. PRACTICE EXAM 1

Question 19 (D) Decline to serve as trial counsel for the

contractor because she can foresee that she
A building contractor and his attorney will be called as a witness.
met with a landowner to negotiate a contract
for construction of an office building on the Question 20
landowner’s property. The contractor, the
attorney, and the landowner were the only An author wrote a best-selling novel based on
persons present at the meeting. Ultimately, the the life and crimes of John Dillinger, the famous
three of them worked out a written agreement, bank robber. The author sold the movie rights to
and the contractor commenced work. However, a film producer, who promised to pay the author
it soon became apparent that the building site a lump-sum royalty of $5 million upon the
required far more preparation work than the release of the movie. After the producer hired an
contractor had contemplated when he agreed actor to play the lead role and made other expen-
to the contract price. The contractor and the sive preparations for filming, the author repudi-
landowner argued about who had to pay for ated the contract. The producer hired an attorney
the additional site preparation. One important to sue the author for a declaratory judgment
issue is whether the landowner made certain that the contract was valid and enforceable. At
oral representations to the contractor during the the producer’s request, the attorney agreed to
contract negotiating session that the attorney do the legal work on a contingent fee basis: If
attended. The contractor contends that the the producer wins, the attorney will be paid
landowner did make the representations, while 1.75% of the gross receipts from the movie, but
the landowner contends that he did not. The if the producer loses, the attorney will be paid
attorney was present during the entire negoti- nothing. The producer and the attorney entered
ating session, and she is virtually certain that the into a written fee agreement that contains all the
landowner did not make the representations. details required by the rules of legal ethics.

The contractor refused to proceed with Which of the following statements is true?
construction until the landowner paid for the
extra site preparation. The landowner then sued (A) The attorney is subject to discipline for
the contractor for specific performance of the entering into a publication rights contract
construction contract. The contractor asked the with his client.
attorney to represent him as trial counsel.
(B) The attorney is subject to discipline for
The attorney should: acquiring a personal interest in the subject
of the litigation.
(A) Agree to serve as trial counsel for the con-
tractor because the contractor is entitled to (C) The attorney’s fee agreement is proper, but
the counsel of his choice. only if the author gives informed consent.

(B) Agree to serve as trial counsel for the (D) The attorney’s fee agreement is proper,
contractor because she can refuse to even though it gives the attorney a personal
testify if she is called as a witness by the interest in the subject of the litigation.
landowner.

(C) Decline to serve as trial counsel for the

contractor because a lawyer is not allowed
to testify in a manner that is prejudicial to
her client.

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 PRACTICE EXAM 1 217.

Question 21 Question 22

For many years an attorney has done business An attorney is a voting member of the legisla-
transactions work for a wealthy client. The client tion committee of a consumer-based law reform
was recently injured in an automobile crash, group that drafts and advocates the passage of
and she has asked the attorney to represent proposed statutes on food safety. The law reform
her as plaintiff in an action against the driver group is currently debating a draft statute that
who injured her. The attorney has taken some sets quality and safety standards for growth
business cases to trial, but he has never handled hormones administered to chickens, turkeys, and
a personal injury case. other poultry. The attorney is also engaged in
the private practice of patent law. She regularly
The attorney would like to help his client represents a biotechnology firm. Using the
and also generate some income. Which of the techniques of genetic engineering, the biotech-
following would be an improper way for him to nology firm invents, develops, and sells a variety
do so? of patented growth hormones. The attorney
herself has obtained patents on some of these
(A) Take the case and, with the client’s consent, hormones for the biotechnology firm. If enacted
associate a co-counsel who is competent in into law, the law reform group’s proposed statute
the field of personal injury law. on poultry hormones could materially increase
the biotechnology firm’s hormone sales because
(B) Refer the client to a competent personal it is the only firm whose hormones would meet
injury lawyer and charge that lawyer a the statute’s quality and safety requirements.
$1,000 forwarding fee.
Would it be proper for the attorney, as a
(C) Refer the client to a competent personal member of the law reform group’s legislation
injury lawyer and charge the client a committee, to participate in the debate on, and to
reasonable sum for the time spent in cast her vote on, the proposed statute?
making the referral.
(A) No, because the statute could materially
(D) Take the case and, with the client’s consent, benefit the biotechnology firm.
undertake additional research to bring
himself up to speed in the field of personal (B) No, because the attorney may not serve as
injury law. a member of the law reform group while
representing the biotechnology firm.

(C) Yes, provided that she informs the legis-

lation committee that she represents an
unnamed client whose interests could be
materially benefited by the statute.

(D) Yes, provided that she informs the legis-

lation committee that she represents the
biotechnology firm, whose interests could
be materially benefited by the statute.

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218. PRACTICE EXAM 1

Question 23 Question 24

A judge sits on a federal appellate court. He An attorney has organized his law practice
and two other federal judges heard a diversity of as a professional corporation. The attorney is
citizenship case in which they were required to the sole shareholder. The sign on the office door
interpret a state statute concerning the marital states:
communications privilege. The judge’s two
colleagues wrote the majority opinion, in which Professional Corporation— Attorney at Law
they concluded that the statute gives only the Corporate and Business Law,
witness-spouse the right to claim the privi- Torts and Domestic Relations
lege. The judge wrote a vigorous and scholarly
dissent, arguing that the statute gives both The attorney has one lawyer-employee, who
spouses the right to claim the privilege. was admitted to practice two years ago. The
attorney pays his employee a modest monthly
Later, a state senator introduced a bill to salary plus 60% of the fees collected in cases
amend the statute to reflect the judge’s position. that the employee handles by herself. The
The state senate invited the judge to testify about attorney has a general business practice and is
the public policy reasons for giving both spouses not a certified specialist in any practice area.
the right to claim the privilege. When a client needs representation in a tort or
domestic relations matter, the attorney turns
May the judge testify? the case over to his lawyer-employee. When the
attorney turns a case over to the employee, he
(A) Yes, but only if the two judges who wrote provides general guidance and is available to
the majority opinion are also allowed to answer any questions she may have, but he does
testify. not supervise every step she takes.

(B) Yes, because a judge may engage in activi- Is the attorney subject to discipline?
ties designed to improve the law.
(A) Yes, because he splits fees with his em-
(C) No, because a judge must not become ployee in matters she handles by herself.
involved in politics, subject to certain
exceptions that do not apply here. (B) Yes, because he does not closely supervise
the work done by his employee.
(D) No, because a judge is not allowed to make
public statements about disputed proposi- (C) No, but he should change his sign to show
tions of law, except when acting in his the fields of practice that he personally
judicial capacity. handles.

(D) No, because the employee is a lawyer-

employee of the attorney.

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 PRACTICE EXAM 1 219.

Question 25 Question 26

An attorney was representing the plaintiff A steel company merged with an iron corpo-
at a bench trial of a civil action pending before ration. The state attorney general sued the steel
a judge. Midway through the plaintiff’s case- company and the iron corporation in federal
in-chief, the judge called the attorney into his court to enjoin the merger, alleging that it was
chambers. The judge told the attorney that he in violation of the federal antitrust laws. The
thought the attorney’s case was very weak, federal district judge enjoined the merger, and
but that he could be mistaken because he was the steel company appealed the judge’s decision.
distracted by money troubles. The judge went
on to say that if he could get a $50,000 loan, he The steel company’s attorney, doing the legal
would feel much better. The attorney responded research for the appeal, found a recent merger
that he would be happy to loan the judge decision rendered by the Federal Trade Commis-
$50,000 to help him out as a friend. Later that sion (“FTC”) that is directly adverse to the
afternoon, a messenger delivered an envelope steel company’s position. FTC decisions do not
containing $50,000 in cash to the judge’s control in the United States Courts of Appeal,
chambers. No mention was made of a promis- but they are persuasive. The attorney general
sory note, a repayment date, or an interest rate. failed to cite the FTC decision.
Two days later, the plaintiff settled his lawsuit
so the judge never had to decide the case. Three Must the steel company’s attorney disclose it
months later, the judge repaid the $50,000 to the to the court?
attorney, together with interest at the market rate.
(A) Yes, because it is persuasive authority.
Is the attorney subject to criminal liability for
lending the money to the judge? (B) Yes, because the FTC decision is directly
adverse to the steel company’s position.
(A) Yes, if it is proven that the judge intended
to induce the attorney to make the loan in (C) No, because a lawyer has no obligation to
return for a decision in favor of the plain- volunteer facts harmful to his client’s case.
tiff.
(D) No, because the court of appeals is not
(B) Yes, if it is proven that, in making the loan, obliged to follow the FTC ruling.
the attorney intended to induce the judge to
decide the case in favor of the plaintiff.

(C) No, because as the matter turned out, the

judge never had to decide the plaintiff’s
case.

(D) No, because the judge repaid the loan with

interest.

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220. PRACTICE EXAM 1

Question 27 Question 28

A solo practitioner is one of only three An attorney agreed to represent a wife on an

lawyers in a small town. The solo practitioner is hourly fee basis in securing a divorce from her
presently defending a client in a criminal action husband. The husband is also represented by
for assault and battery. This morning one of an attorney. Despite repeated warnings by her
the solo practitioner’s regular clients, a gas and attorney, the wife kept pestering her attorney
grocery store, asked the solo practitioner to sue with telephone calls and office visits concerning
the same client to recover a past due amount on a inconsequential details and trifling personal
gasoline and grocery charge account. complaints. When the wife was unable to contact
her own attorney on the phone or in person, she
Would it be proper for the solo practitioner to would telephone her husband’s attorney, and try
represent the gas and grocery store in the charge to put her questions and complaints to him. The
account case? husband’s attorney always refused to talk to his
client’s wife. The wife’s attorney repeatedly told
(A) No, because it is presumed that a lawyer her not to contact her husband’s attorney, but to
obtains confidential information in the no avail. Finally, the wife’s attorney told the wife
course of representing a client. that she would withdraw unless the wife changed
her ways, but the wife did not do so. The wife’s
(B) No, unless the other two lawyers in town attorney withdrew and sent the wife a fee bill
are disqualified from representing the gas for the total number of hours she had spent on
and grocery store. the case. The wife refused to pay the bill, and
after futile efforts to settle the matter, the wife’s
(C) Yes, because there is no substantial relation- attorney sued her to collect the fee, and stated
ship between the charge account case and that she would be holding the file until her bill
the assault and battery case. was paid.
(D) Yes, if both the client and the gas and Which of the following propositions is not
grocery store consent after full disclo- true?
sure of the conflict, and such consent is
confirmed in writing. (A) It was proper for the wife’s attorney to
withdraw.

(B) It was proper for the husband’s attorney to

refuse to talk with the wife on the phone.

(C) It was proper for the wife’s attorney to bill

the wife for the total amount of time she
spent on the case.

(D) It was proper for the wife’s attorney to hold

the wife’s file until paid.

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 PRACTICE EXAM 1 221.

Question 29 Question 30

An attorney in solo practice published a The state bar association has established
brochure regarding what one should do when a peer counseling program whereby lawyers
injured. The brochure contains accurate, helpful who are addicted to alcohol or other drugs
information about obtaining proper medical can receive confidential counseling from other
treatment, recording details of the accident, lawyers. The bar association’s ethics rule on
notifying insurance companies, not making confidential information provides that commu-
harmful statements, and the like. The attor- nications between the counselor lawyer and the
ney’s name, address, and telephone number are counseled lawyer are to be treated just like confi-
printed on the brochure’s cover. One afternoon, dential communications between an attorney and
the attorney saw a pedestrian knocked down client.
in a crosswalk by a hit-and-run driver. He and
another bystander called 911 and gave the pedes- A lawyer is addicted to alcohol and is
trian emergency first aid until an ambulance receiving peer counseling under the program
arrived. The next day, the attorney visited the from another lawyer. The lawyer is a large,
pedestrian in the hospital and gave the pedes- strong man, and his addiction has made him
trian a copy of his brochure. subject to periodic fits of physical violence. This
afternoon, during their peer counseling session,
Which of the following is correct? the lawyer told his peer counselor that his client
had refused to pay the fees he owes, and that
(A) The attorney is subject to discipline, both he intended to punch out the client the next
for publishing the brochure and for giving time he got roaring drunk. From working with
the brochure to the pedestrian in the hospi- the lawyer over an extended period, the peer
tal. counselor believes that he may really do it.

(B) The attorney is subject to discipline for May the peer counselor disclose the lawyer’s
publishing the brochure. statement to the client and the police?

(C) The attorney is subject to discipline for (A) No, unless the lawyer consents.
giving the pedestrian a copy of the brochure
at the hospital. (B) No, unless the peer counselor is certain that
the lawyer will carry out his threat.
(D) The attorney’s conduct was proper because
the brochure’s contents are neither false nor (C) Yes, even if the lawyer objects.
misleading.
(D) Yes, because he is serving as a peer
counselor, not a lawyer.

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222. PRACTICE EXAM 1

Question 31 Twenty days later, the prosecutor recharged

the swimming coach with the same offense. The
An elderly widower has one living child, a swimming coach hired his original criminal
daughter. The widower’s main asset is a 51% attorney to defend him. The same judge presided
partnership interest in a wealthy real estate over the second trial. The swimming coach’s
syndicate that owns and operates mobile home attorney made no pretrial motions. This time
parks throughout the state. The daughter’s the prosecutor did not falter, and in due course
husband is an attorney. One of the husband’s the jury at the second trial found the swimming
regular clients asks the husband to represent him coach guilty as charged. The judge sentenced
in negotiating the sale of 3,000 acres of roadside him to prison for the period required by law,
property to the real estate syndicate. The real but she stayed the sentence and released him
estate syndicate is represented by its own lawyer on his own recognizance pending appeal. The
in the matter. swimming coach reluctantly paid the criminal
attorney’s bill for the second trial—$5,000.
May the husband represent his regular client However, the swimming coach hired a new
in a sale with the real estate syndicate? lawyer for the appeal, and in due course the
appellate court reversed the conviction and set
(A) No, even if the client gives informed con- aside the prison sentence. The appellate court’s
sent, confirmed in writing. opinion stated it had never seen a clearer double
jeopardy violation.
(B) No, because to do so would create an
appearance of impropriety. Will the swimming coach’s original criminal
attorney be subject to civil liability in a legal
(C) Yes, because the husband has no significant malpractice action brought by the swimming
personal interest in the real estate syndicate. coach for having missed the double jeopardy
issue?
(D) Yes, but only if the client gives informed
consent, confirmed in writing. (A) No, because the swimming coach never
served jail time as a result of the original
Question 32 attorney’s error.
A swimming coach was charged with assault (B) No, even if the swimming coach proves by
of another coach. The swimming coach hired a a preponderance of evidence that he did not
criminal attorney to defend him. Subsequently, commit the assault on the opposing coach.
the swimming coach pleaded not guilty and was
released on his own recognizance. At his first (C) Yes, provided that the swimming coach
trial, a jury was empanelled, and the prosecutor proves by a preponderance of evidence
was almost finished presenting the testimony that he did not commit the assault on the
of her first witness when a signal from her opposing coach.
electronic pager interrupted her. The trial judge
granted her request for a short recess, at the end (D) Yes, but the swimming coach can recover
of which the prosecutor told the judge that her only nominal damages.
office had instructed her not to proceed with this
case at this time. The judge responded that if the
prosecutor stopped now, the defendant would
go free. When the prosecutor indicated that she
understood, the judge entered a judgment of
acquittal and set the swimming coach free.

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 PRACTICE EXAM 1 223.

Question 33 Question 34

An attorney and a licensed real estate devel- A bank and trust company maintains a list of
oper, a nonlawyer, created a partnership to serve approved estate and trust lawyers as a service
people who want to invest in commercial real to their customers who seek advice on estate
estate. The real estate developer finds promising planning matters. When a young attorney
commercial real estate projects, brings together opened her trust and estate practice in town, she
groups of investors, and works with local asked other lawyers how she could get on the
planning authorities to gain approval for the bank’s approved list. They explained that the
projects. The attorney drafts the legal documents bank lists lawyers who always name the bank in
for the projects, assists the investors with the wills and trust agreements they draft for clients
legal technicalities, advises the investors on their who need an institutional executor or trustee.
tax liabilities, and does whatever legal work the The bank is one of the most stable and reputable
investors need in connection with management banks in the state, and its fees for executor and
and operation of the projects. The attorney and trustee services are competitive with those of
the real estate developer charge the investors similar institutions.
a single fee for their work, and they divide the
partnership profits 50%-50%. In light of what she has been told by the other
lawyers, may the young attorney seek to have her
Is the attorney subject to discipline? name included on the bank’s list?

(A) No, provided the investors give informed (A) No, because a tacit condition of being on
consent to the potential conflicts of interest, the list is always to name the bank as ex-
and such consent is confirmed in writing. ecutor or trustee.

(B) No, because the real estate developer does (B) No, because a lawyer must not solicit
only development work, and the attorney business through an intermediary.
does only legal work.
(C) Yes, because naming the bank causes no
(C) Yes, because the attorney and the real estate harm to clients who need an institutional
developer are partners in the business. executor or trustee.

(D) Yes, because she is aiding the real estate (D) Yes, because those who use the bank’s list
developer in the unauthorized practice of are already bank customers.
law.

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224. PRACTICE EXAM 1

Question 35 Question 36

A man alleges that a very wealthy actor An attorney regularly represents a manufac-
punched him in the face. He contacted an turer of electric kitchen appliances. One morning
attorney about representing him in a civil action the president of the manufacturing company
against the actor. After several lengthy discus- called the attorney and asked if the attorney had
sions with the attorney about the merits of seen the newspaper story about a woman who
the case, the man decided to employ another was electrocuted when she opened the door of
lawyer instead. The actor was later charged with her dishwasher. The company president stated
criminal assault in connection with this incident, that he believed the dishwasher was one that
and the trial was televised. As the attorney was his company had manufactured. The company
watching the trial, she was astonished when the president also stated that he found some quality
man testified to facts that the attorney knew control records from that period which reflected
from their previous discussions to be false. that some dishwashers left the plant without
proper testing. He continued that the records
The attorney sent a letter with a messenger should have been shredded, but somehow had
over to the court to notify the court that the man been overlooked, and said that he intended to
had perjured himself. send the records to the shredder immediately
unless the attorney told him that he could not.
Were the attorney’s actions proper?
Must the attorney advise the president to keep
(A) Yes, because her actions were necessary to the records?
prevent the man from perpetrating a fraud
on the court. (A) Yes, unless the company has a clearly
established policy of shredding quality con-
(B) Yes, because the man committed a criminal trol records after two years.
act by testifying falsely.
(B) Yes, because the records have potential
(C) No, unless she sent copies of the letter to evidentiary value if the company gets sued.
the prosecution and defense lawyers and
they are given an opportunity to respond. (C) No, because at this point there is no
litigation pending against the company
(D) No, because the attorney’s information was respecting this matter.
gained during her discussions with the man.
(D) No, unless it was certain that the company
was the manufacturer of the dishwasher in
question.

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 PRACTICE EXAM 1 225.

Question 37 The defendant himself has blocked the entire

event from memory and has no idea whether the
An attorney practices environmental law. He light was green or red. Five bystanders were in a
also happens to be one of the nation’s leading position to see the light at the time in question.
experts on the environmental effects of filling The attorney interviewed four of them. With
wetlands. The state legislature has scheduled varying degrees of uncertainty, all four of them
hearings on a bill to prohibit the filling of told the attorney that they believe the light was
wetlands surrounding a bay. One of the attorney’s red but that they are not positive. Based on
regular clients is a development company, which their recollections, as well as certain physical
owns development rights to some of the wetlands evidence in the case, the attorney herself believes
in question. The development company wants that the light was probably red, but of course
to fill its wetlands so that it can build low-cost she was not present at the scene and cannot be
housing for underprivileged families. The devel- certain. Then the attorney interviewed the fifth
opment company hired the attorney to appear as bystander, who said that he simply could not
a witness at the legislative hearings and to testify remember what color the traffic light was. The
in opposition to the ban on wetland filling. The attorney replied: “My client is facing 20 years in
attorney appeared as a witness, identified himself jail, and the whole case against him turns on the
as an expert on wetlands, and testified vigorously color of that light. My client and I would both be
against the proposed legislation. eternally grateful to you if you could testify that
the light was green. Would you help us out?”
Was the attorney’s conduct proper? After thinking it over, the fifth bystander said he
would be glad to help by testifying that the light
(A) Yes, unless his testimony was contrary to
was green. At the trial, the attorney presented
his own beliefs about the environmental
the fifth bystander’s testimony that he saw the
effects of filling wetlands.
light, that he remembers what color it was, and
(B) Yes, because he is a leading expert on the that it was green. The jury believed the fifth
environmental effects of filling wetlands. bystander, and the defendant was acquitted.

(C) No, unless he informed the legislators Is the attorney subject to criminal liability for
that he was appearing in a representative inducing the fifth bystander to testify falsely?
capacity.
(A) Yes, because both the bystander and the
(D) No, because a lawyer must not be a witness attorney knew that the bystander did not
for his client on a contested matter. remember what color the light was.
Question 38 (B) Yes, because neither the bystander nor
the attorney was certain that the light was
An attorney represents the defendant in a green.
criminal case. The defendant is charged with
vehicular homicide, a felony. Under the criminal (C) No, because neither the bystander nor the
statute in question, a defendant is guilty if he attorney was certain what color the light
caused the victim’s death by driving a motor was.
vehicle either intentionally or recklessly in disre-
gard of the safety of others. In the defendant’s (D) No, because the defense lawyer in a
case, the critical issue is whether the traffic light criminal case must resolve all doubtful
facing the defendant’s traffic lane was green at facts in her client’s favor when she presents
a specified moment. If the light was green, then evidence on her client’s behalf.
the defendant is not guilty, but if it was red, then
the defendant is guilty.

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226. PRACTICE EXAM 1

Question 39 they had made a mockery of justice, and that

they should be ashamed of themselves.
A law professor was selected as the neutral
arbitrator of a boundary line dispute between an He then dismissed the jury, and the defense
elderly couple and the couple’s next-door neigh- lawyers renewed their motion for judgment as a
bors. The law professor decided the matter in matter of law and, alternatively, moved for a new
favor of the elderly couple. Shortly thereafter, trial. The judge announced that he would rule on
the law professor quit his teaching position and the motions the following Monday at 10 a.m. in
entered private law practice. The elderly couple’s open court. The press reports of the verdict and
next-door neighbors brought suit to have the the judge’s comments to the jury created a great
arbitration award set aside. The elderly couple public tumult in the city where the case was
asked the law professor to represent them in the tried.
suit.
On the following Monday, the courtroom
If the law professor takes the case, will he be was jammed with reporters. Primarily for the
subject to discipline? purpose of educating the reporters, the judge
first gave a detailed explanation of the legal
(A) No, because serving as the elderly couple’s requirements for granting a renewed motion for
lawyer is consistent with his decision as judgment as a matter of law and for granting a
arbitrator in their favor. new trial motion. He then granted the renewed
motion for judgment as a matter of law and,
(B) No, because by seeking to hire the law alternatively, the motion for a new trial.
professor, the elderly couple is deemed to
have consented to the conflict of interest. Were the judge’s actions proper?

(C) Yes, because his earlier service as neutral (A) Both the statements to the jury and the
arbitrator creates a conflict of interest. communication with the reporters were
proper.
(D) Yes, because there is reasonable ground to
doubt his impartiality in the case. (B) Neither the communication with the
reporters nor the statements to the jury
Question 40 were proper.
A plaintiff brought a civil action to recover (C) The statements to the jury were proper, but
damages for personal injuries he suffered as the the communication with the reporters was
victim of alleged police brutality inflicted by not.
three defendant police officers. The trial was
widely reported by the media. The jury returned (D) The communication with the reporters was
a verdict in favor of the plaintiff and against the proper, but the statements to the jury were
three police officers for $500 million. When the not.
trial judge received the verdict, he was shocked
by the size of the award. Before dismissing the
jurors, the judge told the jurors that when they
were sworn in, they had promised that they
would deliver a verdict based on the evidence
and that they would not be swayed by passion
or prejudice. The judge further admonished the
jurors that they had failed in those duties, that

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 PRACTICE EXAM 1 227.

Question 41 Question 42

A client lives in State A and is a regular client An attorney is a partner in a private law firm.
of an attorney who is admitted to practice only That firm regularly provides legal services to
in State A. When the client was on vacation in three major banks and two other important
distant State B, she was injured in a car accident lending institutions in the community. The
caused by a resident of State B. The client hired attorney has been invited to become a member
the attorney to represent her in a civil action of the board of directors of the local legal aid
against the State B driver. For reasons of juris- society, the group that sets overall governing
diction and venue, the case had to be filed and policies for the local legal aid office. One of the
tried in State B. The written fee agreement major issues that will soon face the board of
between the client and the attorney provided directors is whether to amend the case intake
that: guidelines to allow the legal aid office to repre-
sent clients in disputes with banks and other
(1) The attorney would assume full responsi- lending agencies.
bility for the case as lead lawyer;
Which of the following statements is correct?
(2) The client would pay the attorney 40%
of the net recovery after deduction of litigation (A) The attorney may join the board of direc-
expenses; tors, but she must refrain from participating
in the decision about the case intake guide-
(3) The attorney would associate a State B lines.
lawyer to serve as trial counsel in State B;
(B) The attorney will be subject to discipline
(4) The State B lawyer would assume respon- if she joins the board of directors because
sibility only for his work as trial counsel; and service on the board is in conflict with the
interests of her firm’s bank and lending
(5) The attorney would pay the State B lawyer institution clients.
an appropriate portion of the 40% contingent
fee. (C) It would be proper for the attorney to join
the board of directors, and it would be
Would it be proper for the attorney to split his proper for her to participate in the decision
fee with the State B lawyer under the circum- about the case intake guidelines.
stances described above?
(D) The attorney may join the board of direc-
(A) No, because the attorney is not admitted in tors to help discharge her pro bono obliga-
State B. tion, and she may vote in favor of amending
the case intake guidelines in order to make
(B) No, because the share that each lawyer will it easier for low income persons to sue
receive was not disclosed in the written fee banks and other lending institutions.
agreement.

(C) Yes, because the State B lawyer was

assuming responsibility for his work as trial
counsel.

(D) Yes, because there was a written fee agree-

ment.

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228. PRACTICE EXAM 1

Question 43 (B) No, because the employee and the construc-

tion company gave informed consent,
A 12-year-old boy was badly injured when confirmed in writing, to the joint represen-
he was struck by a dump truck owned by a tation.
construction company and driven by the compa-
ny’s employee. The boy and his parents sued the (C) Yes, because the potential conflict creates
construction company and the employee. The an appearance of impropriety.
first count of their complaint alleges that the
employee drove negligently while acting within (D) Yes, even though the employee and the
the scope of his duties for the construction construction company gave informed
company, and that the construction company is consent, confirmed in writing, to the joint
therefore liable for the boy’s injuries. The second representation.
count alleges that the employee drove negli-
gently while on a frolic of his own, and that the Question 44
employee is therefore liable for the boy’s injuries.
A client hired an attorney to put together a
The construction company hired an attorney complex real estate syndicate. In connection with
to defend both the construction company and that work, the client disclosed to the attorney
its employee. The attorney conducted a careful a great deal of confidential information about
investigation of the facts and concluded that the client’s financial affairs. When the task was
the employee was in no way negligent; he was about half completed, the attorney’s wife was
driving slowly and carefully when the boy killed in a car accident and his family’s house
suddenly ran out into traffic from between two burned down, all in the same week. The attorney
parked cars. The attorney further concluded was so emotionally and physically drained that
that the employee was acting within the scope he felt he could not competently continue with
of his duties when the accident happened. The the work for his client. The client refused to
attorney concluded that he could win the case allow the attorney to withdraw. The attorney
because of the lack of negligence, and that he begged the client to allow him to turn the files
could effectively represent both the employee over to his law partner, an excellent real estate
and the construction company. He then carefully lawyer who was completely trustworthy and
explained the potential conflicts of interest perfectly competent to handle the matter. The
to both of them and obtained their informed client refused to allow his files to be turned over
consent, confirmed in writing, to the joint repre- to any other lawyer and insisted that the attorney
sentation. After exhaustive discovery proceed- himself promptly complete the work.
ings, the attorney remained convinced that the
employee was not negligent, but he nonetheless What should the attorney do?
explained the potential conflicts to the employee
and the construction company a second time and (A) Turn the files over to his partner, and
again obtained their informed consent, confirmed remain available to assist his partner to the
in writing, to the joint representation. Three extent possible.
weeks before the case was scheduled for trial,
counsel for the plaintiffs moved to disqualify the (B) Withdraw and turn the client’s files over to
attorney due to a conflict of interest between the the client.
employee and the construction company.
(C) Set the client’s work aside until he recovers
Must the trial judge disqualify the attorney? from the ills that have befallen him.
(A) No, because there is no actual or potential (D) Continue with the matter and do the best
conflict between the employee and the con- that he can under the circumstances.
struction company.

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 PRACTICE EXAM 1 229.

Question 45 Question 46
An attorney is defending a marine supply An attorney who limits his practice to
company in a civil action brought by the state bankruptcy law has signed up on the local court
attorney general under a statute that makes it a roster of lawyers who are willing to take court-
civil offense for any person or business entity appointed criminal defense matters on a pro
to bribe or give a kickback to a state official. bono basis. He has taken approximately one such
The statute authorizes fines of up to $100,000 pro bono criminal case each of the past 10 years,
per transaction for any violation. The marine but he has won only two of them. The day after
supply company has a strict corporate policy that tomorrow, the attorney will start the jury trial
prohibits its employees from bribing or giving of a criminal defendant charged with indecent
kickbacks to anyone. Employees who violate the exposure. This morning, the prosecutor held a
policy are subject to immediate discharge and press conference, at which he told reporters that
are required to indemnify the marine supply this defendant had been accused of various sex
company for any loss it suffers as a consequence offenses on six prior occasions. The prosecu-
of the violation. tor’s statements are correct, but none of the prior
incidents will be admissible in evidence at the
The attorney general has noticed the deposi-
upcoming trial. The defendant’s attorney thinks
tions of dozens of the marine supply company’s
that the prosecutor was simply trying to poison
employees. One of these employees, prior to his
the jury pool by degrading the defendant. The
recent retirement, was the sales manager of the
attorney is planning to call his own press confer-
marine supply company. The attorney met with
ence at which he will give the reporters the rest
this employee to prepare him for his deposi-
of the story. The attorney intends to explain that
tion. At the outset of the interview, the attorney
on all six prior occasions, the defendant was
agreed to represent the employee without charge,
arrested but never charged, and all six arrests
and the attorney told the employee that anything
were made by the same police officer, who holds
said between them would be confidential. During
a personal grudge against the defendant.
the interview, the attorney asked the employee
whether he had ever bribed any state officials. Which of the following is correct?
The employee confessed that he had, but said it
had been necessary because all of the company’s (A) The attorney is subject to discipline for
competitors were doing it, too. accepting this court appointment in light of
What course of action may the attorney his apparent lack of talent for criminal trial
pursue at this point? work.

(A) Withdraw from the case and inform the at- (B) The attorney’s proposed statements at the
torney general what the employee said. press conference are proper in light of the
prosecutor’s prior statements to the press.
(B) Withdraw from the case and keep the
employee’s statement in confidence. (C) The attorney is subject to discipline for
accepting court appointments in criminal
(C) Withdraw from representing the employee matters when his active practice is limited
and inform the marine supply company to bankruptcy law.
what the employee said.
(D) Continue in the case, inform the marine (D) The attorney will be subject to discipline
supply company what the employee said, if he holds the press conference and makes
and advise the marine supply company to the statements described above.
seek prompt settlement.

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230. PRACTICE EXAM 1

Question 47 Question 48

A Hollywood movie producer was charged A patent attorney focuses her practice on
under a criminal statute for unfair trade patents that involve genetically engineered
practices, and now faces a civil claim under the medicines. Representatives of a bioengineering
same statute. The producer retains an attorney firm had a preliminary conversation with the
to represent him in both suits. The attorney is attorney about representing the bioengineering
a nationally known defense attorney who has firm in a patent infringement action against a
represented many famous people. Most recently, pharmaceutical corporation. The attorney had
he defended a celebrity in a notorious murder never represented either company previously. The
case that held the country rapt for several weeks. bioengineering firm’s representatives talked to the
The attorney explains to the producer that the attorney for more than an hour about the bioen-
representation is very complex and would take gineering firm’s patent and about the pharmaceu-
a majority of his time for several months. Given tical corporation’s supposedly infringing product.
the attorney’s steep hourly rate, the producer’s This conversation covered only public informa-
legal fees would likely be around $1 million. tion, nothing confidential. The bioengineering
The producer is short on cash and makes the firm’s representatives detected a distinct lack of
following proposal: If the attorney will repre- enthusiasm from the attorney, and they ended
sent him in both the civil and criminal suits, the conversation cordially but without hiring her.
the producer will produce a movie based on the In due course, the bioengineering firm hired a
attorney’s most famous past cases, told from the different patent attorney and sued the pharma-
attorney’s viewpoint. The attorney would have ceutical corporation for patent infringement. The
complete creative control and would be entitled pharmaceutical corporation hired the attorney
to all of the movie’s profits, which could be as defense counsel in the infringement case. The
anything from $0 to $100 million. The producer bioengineering firm’s attorney promptly made a
had his personal attorney draw up a proposal to motion in the trial court to disqualify the attorney
this effect and submitted it to the attorney. because of her earlier conversation with the bioen-
gineering firm’s representatives.
Assuming that the attorney receives any
consent necessary from his former clients who Is the attorney subject to disqualification?
might be portrayed in the movie, is this proposed
arrangement proper? (A) Yes, because the bioengineering firm had
previously consulted the attorney on the
(A) Yes, but only if the payment from the same matter.
movie profits is for the civil suit only.
(B) Yes, because the infringement suit is
(B) Yes, but only if the ultimate amount paid to substantially related to the earlier conversa-
the attorney is not excessive in light of the tion between the attorney and the bioengi-
work done. neering firm’s representatives.

(C) No, because any amount over $1 million (C) No, because the bioengineering firm was
is clearly excessive, and this arrangement never the attorney’s client.
could be worth $100 million.
(D) No, because the prior conversation between
(D) No, because a lawyer must not acquire the attorney and the bioengineering firm’s
media rights to a story concerning the representatives did not involve confidential
lawyer’s representation of a client. information.

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 PRACTICE EXAM 1 231.

Question 49 (A) No, because the attorney was represent-

ing his client zealously within the bounds
A plaintiff, represented by his attorney, of the law as he was required to do by the
brought suit in federal district court against a pest rules of legal ethics.
control company and nine chemical companies
for physical and emotional injuries the plaintiff (B) No, because litigation sanctions can be
suffered after accidentally inhaling cockroach imposed only on parties to the litigation,
spray emanating from an apartment that had not on their lawyers personally.
recently been fumigated by the pest control
company. The attorney’s theory for suing the nine (C) Yes, even if the attorney was acting in good
chemical companies was that the pest control faith, mistakenly but genuinely believing in
company had probably purchased its cockroach the validity of the legal positions he took.
spray from at least one of the nine chemical
companies. A large law firm represented one of (D) Yes, provided that the chemical company can
the nine chemical company defendants. By using show that the attorney either intentionally or
depositions and document demands early in the recklessly took frivolous legal positions in
discovery phase of the case, the law firm estab- order to harass the chemical company.
lished that the chemical company it represented Question 50
had never at any time sold any type of chemical
to the pest control company. The law firm then A police officer was charged with murder. He
moved for summary judgment as to its client. The is alleged to have savagely beaten and ultimately
plaintiff’s attorney offered no substantive response killed a teenage gang member in the course of
to that motion, but rather filed a countermotion an arrest. Neither the police department nor
to disqualify the law firm on the ground that the the officer’s union was willing to provide legal
firm was biased against the plaintiff. counsel for his defense, and the officer himself
lacked funds to hire private counsel. The public
The trial judge denied the motion to defender’s office could not represent him due to a
disqualify the law firm and granted the chemical conflict of interest from a related case. The trial
company’s summary judgment motion, where- court therefore appointed an attorney to defend the
upon the plaintiff’s attorney immediately moved officer. The attorney is only three years out of law
for a rehearing, moved to stay the trial judge’s school. The attorney practices criminal defense,
two orders, and moved to disqualify the trial but he has never handled a murder case before.
judge for bias and prejudice against the plaintiff
and in favor of the defendant chemical company, For which of the following reasons may the
the nature of the bias and prejudice being attorney decline the court appointment?
unspecified. The disposition of these motions
consumed an entire year, due to the attorney’s (A) Based on what he has read in the newspapers,
obstreperousness and his repeated requests he sincerely believes that the officer is guilty.
for postponements and extensions of time.
Meanwhile, the law firm had to stay actively (B) He has no experience in the defense of a
involved in the case to protect the chemical murder case.
company’s position. This year-long ordeal ended
(C) He is of the same race as the teenage
up costing the chemical company $14,500 in
victim, and he is in sympathy with the
attorneys’ fees and $6,750 in litigation costs.
plight of young gang members.
Is the plaintiff’s attorney subject to litiga-
tion sanction in the form of an order against the (D) He recently was diagnosed with severe
attorney personally to pay the $14,500 in attor- depression, which is affecting his ability to
neys’ fees and the $6,750 in litigation costs? handle his existing caseload.

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232. PRACTICE EXAM 1

Question 51 (A) The attorney is subject to discipline for his

failed effort to serve both sisters when their
Two sisters are partners in a bakery. Their interests were patently in conflict.
partnership agreement says that they will share
the work and the profits equally. They are very (B) It would be proper for the attorney to
close, but they constantly bicker—each claims represent the sister in the lawsuit as she
that the other is taking an unfair share of the requested, even without the informed
profits and shirking on the work. Six months consent of her partner-sister.
ago, they hired an attorney to act as a third-party
neutral, to help them resolve their differences (C) The attorney’s law firm partner may
once and for all. At the outset, the attorney represent the sister in the lawsuit as she
explained that he would be strictly neutral requested, but only if her partner-sister is
between them; he would not be representing notified in writing, and only if the attorney
either one, and neither of them would be entitled is timely screened and does not share in the
to the protections afforded by an attorney-client fee earned in the lawsuit.
relationship. After a long series of meetings with
them (sometimes separately, sometimes jointly), (D) The attorney’s law firm partner would be
the attorney proposed a solution. The sisters subject to discipline for representing the
liked his solution, reduced it to writing, and sister in the lawsuit as she requested, even if
signed it, vowing to end their bickering forever. the attorney is timely screened and does not
Six months later, the feud erupted again, worse share in the fee earned in the lawsuit.
than ever. One of the sisters asked the attorney’s
law firm to represent her in a lawsuit against her
partner-sister, seeking to declare the partner-
ship at an end and to bar her partner-sister from
entering the bakery premises.

Which of the following is correct?

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 PRACTICE EXAM 1 233.

Question 52 Question 53

After graduating from law school, an attorney A personal injury attorney and an orthopedic
was admitted to practice in one state and not surgeon are good friends, and they have a high
in any other jurisdiction. She joined the United mutual regard for each other’s professional
States Army Judge Advocate General’s (“JAG”) abilities. One day on the golf course, they made
Corps—the corps of lawyer-soldiers who provide a reciprocal referral agreement: whenever the
legal services to the Army throughout the world. attorney has a personal injury client with need
After completing her officer training and her for an orthopedic surgeon, the attorney promised
training in military law, she was assigned to the to refer the client to the surgeon. Similarly,
JAG office at a military base in a different state. whenever the surgeon has an injured patient
Even though she was not admitted to practice with a need for a personal injury attorney, the
in that state, she was assigned to the legal assis- surgeon promised to refer the patient to the
tance desk. According to Army regulations, attorney. The agreement was oral, not written,
her job is to provide legal services to military and there was no mention of an expiration date;
personnel and their dependents concerning a both women simply assumed that the agreement
wide range of personal legal problems, including would continue indefinitely until one or the other
civil, domestic, and financial matters. An officer wanted to end it. Likewise, they did not discuss
and his wife ask the attorney for legal advice whether the agreement would be exclusive; both
about financing a mobile home, which they plan women simply assumed that neither of them
to put in a mobile home park located in the town would refer someone to a competitor of the other.
closest to the military base. The attorney knows
absolutely nothing about the business and legal Was it proper for the attorney to make this
issues involved in financing a mobile home, but agreement with the surgeon?
she is willing to undertake additional research to
learn about these issues. (A) No, because the agreement was not reduced
to writing.
Would it be proper for the attorney to give the
requested advice to the officer and his wife? (B) No, because the agreement was of an
indefinite duration.
(A) Yes, because she is willing to do the re-
search necessary to give competent advice (C) No, because a lawyer must not give
on mobile home financing. anything of value to a person for recom-
mending her services.
(B) No, because she is not knowledgeable about
these business and legal issues. (D) No, because a lawyer must not enter into
a reciprocal referral agreement with a
(C) No, because she is not admitted to practice nonlawyer.
general civil law in the new state.

(D) No, because mobile home financing is not

directly related to the Army’s mission.

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234. PRACTICE EXAM 1

Question 54 (A) Yes, because the partner makes his con-

tributions from his personal wealth, and
The attorney general’s office does not include he has a constitutional right to participate
any lawyers who are skilled in the field of personally in the political process.
condemnation law (the law of eminent domain).
Consequently, whenever the state wants to use (B) Yes, because the partner’s personal political
its power of eminent domain to condemn some contributions cannot be imputed to the law
private property for a public use, the attorney firm.
general must hire a private law firm to represent
the state in the condemnation proceedings. In (C) No, because a lawyer or law firm must not
contrast to the paltry fees that the state pays to accept appointed legal work from a govern-
appointed defense counsel in criminal cases, mental official after making a political
the attorney general pays quite handsomely for contribution for the purpose of obtaining
condemnation work. The attorney general is such work.
a partisan political position that is filled by a
contested election every four years. A large state (D) No, because to accept such an appointment
law firm limits its practice to condemnation law. would create an appearance of impropriety in
The founding partner is an 87-year-old multi- light of the partner’s political contributions.
millionaire who remains active on the firm’s
management committee. When it is time to
elect a new attorney general, the partner makes
large donations from his personal wealth to each
candidate who has any reasonable chance of
becoming the next attorney general. The other
members of the firm’s management committee
know about the partner’s contributions, and they
have formally and informally expressed the
firm’s thanks for helping the firm obtain future
appointments by the attorney general.

May the firm accept an appointment from the

new attorney general to represent the state in a
condemnation case?

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 PRACTICE EXAM 1 235.

Question 55 Question 56

A retired attorney practiced admiralty and An attorney practices real estate law in an
maritime law for 45 years in Maine. He stopped old-fashioned jurisdiction in which almost every
paying his bar dues in Maine when he retired, real estate transaction requires the services
and he is no longer licensed to practice there. He of one or more lawyers. The attorney is also
and his wife moved to a retirement village in New licensed by the state as a real estate broker. The
Mexico, but he did not seek to become licensed to attorney conducts her law practice and her real
practice law in New Mexico. After a few months estate brokerage business in a single office, using
of playing golf and puttering in the garden, the one secretary and one paralegal as her support
retired attorney got bored and started missing the staff. The attorney specializes in small, relatively
challenges of law practice. He therefore joined old apartment buildings that are not in peak
the unpaid staff of volunteer lawyers at the Rio condition. They make good investments because
Grande Walk-In Legal Advice Clinic, which they can be bought cheap, fixed up, and leased
is run by a nonprofit organization. The clinic’s at favorable rates. When the attorney hears that
purpose is to offer free, quick, accurate, compas- an owner of a suitable building is looking to
sionate legal advice to walk-in clients who cannot sell, she visits them in person and asks them
afford ordinary legal service and who have legal to consider using her to find a buyer. After an
problems that can be solved quickly, without litiga- owner signs her up as their real estate broker,
tion or other time-consuming procedures. Before the attorney lets them know that she can also
they ever see one of the clinic’s lawyers, all of the do the necessary legal work—the title search,
clients must give informed consent to the limited the financing documents, the land transfer
nature of the legal services they will receive. The documents, and the like.
retired attorney works at the clinic three days a
week, and he dispenses legal advice on all sorts of Is the attorney subject to discipline?
matters—although he has yet to find a client who
needed admiralty or maritime advice. The retired (A) Yes, because a person who is engaged in
attorney enjoys the work because it makes him feel full-time law practice must not conduct a
useful again, and because it gives him a cornu- related business from a single office.
copia of interesting stories to tell his wife about his
clients’ various legal troubles. (B) Yes, because a person who offers legal
services along with real estate brokerage
Which of the following statements is correct? services must not engage in face-to-face
solicitation of persons known to need real
(A) The retired attorney is subject to discipline estate brokerage services.
for practicing law without a license.
(C) No, because the attorney’s real estate
(B) The retired attorney is subject to discipline brokerage services are ancillary to her
for failing to pay his bar dues in Maine. law practice, and the two operations are
(C) The retired attorney’s volunteer work is conducted from a single office.
proper because one does not need to be
(D) No, so long as her face-to-face pitch to the
licensed to dispense legal advice at a quick-
owners of apartment buildings is truthful
service clinic like this one.
and not misleading.
(D) The retired attorney’s conversations with
his wife are proper because no confidential
lawyer-client relationship is formed at a
quick-service clinic like this one.

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236. PRACTICE EXAM 1

Question 57 Question 58

An attorney was a widely admired, highly A client hired an attorney to draft a will for
compensated trial attorney in solo practice. him. The client willed his entire estate to a
He represented clients in all types of civil and 43-year-old widow. The client told the attorney
criminal litigation, mostly in high-profile cases in confidence that he was neither a relative nor
that drew a lot of media attention. The governor a friend of the widow. The client explained
of the state where the attorney practiced had that he felt a moral obligation to the widow
been harshly criticized for appointing appel- because he had killed her husband, and he
late judges who lacked significant experience as had never become a suspect or confessed his
trial counsel. Hoping to silence his critics, the sin to anyone. One day after signing the will,
governor appointed the attorney to serve out the the client committed suicide. In due course,
remaining seven years of a recently deceased all of the client’s assets were distributed to the
supreme court justice’s 12-year term. After the widow, and the probate court closed his estate
seven years, the attorney can run for election to and discharged his executor. The attorney never
a new 12-year term. Before taking the oath as told the widow or anyone else that the client
judge, the attorney sold his entire law practice— had confessed to killing the widow’s husband.
books, client files, office lease, furniture, and Now, a few years later, an enthusiastic young
goodwill—to another lawyer. The attorney gave prosecutor is charging an innocent man with
appropriate advance notice to the clients, and murdering the widow’s husband in the first
the purchasing lawyer covenanted that he would degree with aggravating circumstances, and the
not raise their legal fees. A few years later, one prosecutor is seeking the death penalty.
of the cases that the attorney transferred to the
purchasing lawyer came before the state supreme May the attorney voluntarily tell the innocent
court on appeal. man’s defense counsel what his client told him in
confidence about killing the widow’s husband?
Which of the following propositions is false?
(A) Yes, the attorney not only may, but he
(A) The attorney’s sale of his law practice was must, tell the defense counsel what the cli-
proper. ent told him.

(B) The purchaser’s covenant not to increase (B) Yes, the attorney may tell, but he would not
the fees paid by the attorney’s clients was be subject to discipline if he decides not to
proper. do so.

(C) The attorney must disqualify himself from (C) No, the attorney would be subject to disci-
the case involving his former client. pline if he told defense counsel because the
attorney-client privilege survives the death
(D) The attorney may participate in the decision of the client.
of the case involving his former client,
provided that all of the other supreme court (D) No, because the client’s confidential confes-
justices give their informed consent. sion to the attorney would be inadmissible
hearsay if offered against the prosecution in
the murder trial.

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 PRACTICE EXAM 1 237.

Question 59 (A) Keep the admissions director’s statement in

confidence, even if she reasonably believes
A state university receives 45% of its annual that the university is likely to lose its state
budget from the state. The other 55% of the funding as a consequence.
budget comes from private sources. The univer-
sity is chartered by the state constitution, and (B) Promptly disclose the admissions director’s
it is regarded for all purposes as a unit of the statement to the state attorney general, who
state government. The governing body of the is the official in charge of enforcing the
university is its board of overseers, a group of voter initiative.
17 citizens. The chief executive officer of the
university is the chancellor, and the chief legal (C) Attempt to convince the admissions
officer is the general counsel. The university has director to obey the voter initiative, and if
always strived for a student body and faculty he refuses, then disclose the situation to the
that are diverse in age, politics, wealth, race, university’s general counsel.
nationality, religion, sex, and sexual orientation.
One year ago, the voters passed a ballot initia- (D) Anonymously leak the admissions direc-
tive that prohibits all units of the state govern- tor’s statement to the university’s board of
ment, including the university, from considering overseers.
a person’s race when offering employment or
admission to school. The initiative prohibits
giving any state funds to a governmental unit
that violates the initiative. With reluctance,
the university board of overseers adopted a
new university-wide regulation that requires
all admissions officers and hiring committees
to obey the initiative. The state supreme court
sustained the constitutionality of the initiative,
and the United States Supreme Court denied
certiorari. An attorney is one of 15 lawyers
in the university general counsel’s in-house
law office. The general counsel assigned the
attorney to work with the university’s admis-
sions office to develop new admissions criteria
that will comply with the initiative. At the
outset, the attorney reminded the admissions
director that she was not his lawyer, but rather
the university’s lawyer. The admissions director
told the attorney that despite any new admis-
sions criteria, he would continue to consider
race because he believed that was the right thing
to do. Deep in her heart, the attorney agrees
with the admissions director.

Which of the following may the attorney do in

responding to this situation?

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238. PRACTICE EXAM 1

Question 60 (A) The partner must withdraw from repre-

senting the wife because the attorney has
A prospective client comes to a law office received confidential information from the
seeking a lawyer to defend him in a civil action client that would be harmful to the client if
for aggravated assault and battery. An attorney used in the divorce and child custody case.
agrees to talk preliminarily with the client, just to
obtain enough background information to decide (B) It would be proper for the partner to repre-
whether she can defend him. The client explains sent the wife and for the attorney to repre-
that he has an alcohol problem; indeed, he gets sent the client in the assault and battery
roaring drunk about three nights a week. On case because the two matters are not
the night in question, the client said that a loud- substantially related.
mouthed stranger in his neighborhood tavern
made a derogatory comment about the client’s (C) The partner may continue representing the
favorite basketball team. The client responded wife, but only if the wife gives informed
by “tapping” the stranger over the head with a consent, confirmed in writing.
pool cue, not once but four times. At that point,
the attorney suddenly realizes that the client (D) The partner may continue representing the
must be the rotten husband in the hotly disputed wife if the attorney is screened off from
divorce and child custody case in which her law participation in the case and obtains no
partner is representing the aggrieved wife. The part of the fee in the case, and if the firm
attorney stops the client and tells him that she promptly sends the client written notice of
cannot defend him in the assault and battery case the situation.
because of her partner’s work for the client’s wife.

Which of the following is true?

STOP
 PRACTICE EXAM 1 239.

ANSWER SHEET

1 A B C D 31 A B C D
2 A B C D 32 A B C D
3 A B C D 33 A B C D
4 A B C D 34 A B C D
5 A B C D 35 A B C D

6 A B C D 36 A B C D
7 A B C D 37 A B C D
8 A B C D 38 A B C D
9 A B C D 39 A B C D
10 A B C D 40 A B C D

11 A B C D 41 A B C D
12 A B C D 42 A B C D
13 A B C D 43 A B C D
14 A B C D 44 A B C D
15 A B C D 45 A B C D

16 A B C D 46 A B C D
17 A B C D 47 A B C D
18 A B C D 48 A B C D
19 A B C D 49 A B C D
20 A B C D 50 A B C D

21 A B C D 51 A B C D
22 A B C D 52 A B C D
23 A B C D 53 A B C D
24 A B C D 54 A B C D
25 A B C D 55 A B C D

26 A B C D 56 A B C D
27 A B C D 57 A B C D
28 A B C D 58 A B C D
29 A B C D 59 A B C D
30 A B C D 60 A B C D
 PRACTICE EXAM 1 241.

Answer to Question 1 volunteered to take on the case, the attor-

ney’s duty was to put in the requisite time
(A) Yes, it would be proper for the judge to and study. (D) is wrong because a lawyer’s
take the steps mentioned because she has duties of competence, diligence, and loyalty
received information indicating a substan- are no lower in a pro bono matter than in a
tial likelihood that the attorney has violated fee-paying matter.
a legal ethics rule. The attorney has appar-
ently violated ABA Model Rule 1.8(c), Answer to Question 3
which generally prohibits a lawyer from
drafting a will under which he will receive (A) The attorney is subject to discipline because
a substantial gift. A judge who receives the spectator initially declined the attor-
“information indicating a substantial likeli- ney’s request for an interview. ABA Model
hood” that a lawyer has violated a legal Rule 3.5(c) provides that after the trial is
ethics rule must take “appropriate action,” over and the jury is discharged, a lawyer
which may include direct communication must not communicate with a former juror
with the lawyer, direct action, and reporting or prospective juror if any of the following
the violation to the appropriate authority. conditions is met: (1) local law or a court
[CJC Rule 2.15(D)] (B) is wrong because order prohibits such communication; (2) the
it is factually incorrect—the judge does not juror has told the lawyer that she does not
have personal knowledge; rather she has want to communicate; or (3) the communi-
received second-hand information about cation involves misrepresentation, coercion,
the attorney. [See CJC, Terminology] (C) is duress, or harassment. Here, the attorney
wrong because the duties imposed by CJC violated the second condition—he persisted
Rule 2.15 are not confined to lawyers in with his interview request after the
the judge’s own jurisdiction. (D) is wrong spectator said that she did not want to talk
because “appropriate action” may include with him. (C) is incorrect. Even though the
direct communication with the lawyer who communication did not involve coercion,
violated the legal ethics rule. [CJC Rule duress, or harassment, the attorney still
2.15(D), comment 2] spoke with the spectator after she declined
his request, violating the rule. (D) is incor-
Answer to Question 2 rect because ABA Model Rule 3.5(c)
applies to all jurors and even prospective
(A) When ordered to do so by a tribunal, jurors. (B) is too broad. There is no blanket
a lawyer must continue representation prohibition regarding post-trial contact
notwithstanding good cause for terminating with jurors and prospective jurors. Rather,
the representation. [ABA Model Rule such communications are subject to condi-
1.16(c)] Even if the attorney was absolutely tions, and the attorney violated one of these
convinced of his own incompetence, he conditions.
is subject to discipline for abandoning
the teacher in violation of the trial judge’s Answer to Question 4
order. (C) is wrong for the reason stated
above. (B) is wrong because a lawyer is (A) ABA Model Rule 5.3(b) requires that “a
not subject to discipline for taking on a lawyer having direct supervisory authority
case that he is not competent to handle if over the nonlawyer shall make reasonable
he puts in the time and study needed to efforts to ensure that the person’s conduct
make himself competent to handle it. [See is compatible with the professional obliga-
comment 4 to ABA Model Rule 1.1] Having tions of the lawyer.” Although the attorney
242. PRACTICE EXAM 1

provided “extensive, detailed instructions” a duty of reasonable care to a prospective

regarding the client trust account, he subse- client. (C) is incorrect because the attorney
quently did nothing to supervise the secre- did have a legal and ethical reason to reject
tary’s management of the account, thereby the prospective client as a client: the simul-
violating Rule 5.3(b). (B) is incorrect taneous representation of the doctor in the
because a lawyer is not required to manage unrelated matter. (D) is incorrect because
his client trust account himself. (C) and (D) the foreseeability of the harm is not the
are incorrect because the attorney’s duty to whole of the analysis. Even if the attorney
supervise is not contingent on learning of a could foresee that the prospective client
potential problem. would dawdle and let the statute of limita-
tions run, the attorney’s duty of loyalty
Answer to Question 5 to the doctor required him not to warn
the prospective client about the statute of
(A) Generally speaking, a lawyer must not limitations.
represent a client in a presently pending
piece of litigation and simultaneously Answer to Question 6
oppose that client in a different piece of
litigation, without each client’s informed (D) The attorney must turn over all of the
consent, confirmed in writing. [See papers to the client. When a lawyer is fired,
comment 6 to ABA Model Rule 1.7] Here, he must return all “papers and property to
the attorney may have believed that the which the client is entitled.” [ABA Model
conflict of interest that would have been Rule 1.16(d)] In this case, the client is
created by his undertaking representation entitled to all the papers the attorney has
of the prospective client was unconsent- prepared. Under the law of many states,
able. Thus, he acted properly in declining a lawyer can assert a lien on client papers
to represent the prospective client, even in her possession to secure the payment
though the prospective client’s case was of her fee, but here the client has paid the
unrelated to the one in which the attorney attorney for all the work the attorney did.
was representing the doctor. However, (A) is wrong because the attorney must
a lawyer does owe a duty of reasonable turn over the memoranda as well as the
care to a prospective client, even though other documents. (B) is wrong because the
no attorney-client relationship ever comes attorney must give the client the document
about. [See Restatement of the Law drafts as well as the memoranda. (C) is
Governing Lawyers (hereinafter “Restate- wrong because the fact that the attorney
ment”) §15] Ordinarily, that duty would was fired, even without cause, does not in
include cautioning the prospective client any way change the attorney’s duty to give
about an impending statute of limitations the client all of the papers.
deadline. [Id.] Here, however, a cautionary
word to the prospective client would consti- Answer to Question 7
tute disloyalty to the existing client, the
doctor. [See, e.g., Flatt v. Superior Court, (A) It was proper for the judge to allow her
9 Cal. 4th 275 (1994)—warning prospec- husband to accept the prize because accep-
tive client about statute of limitations was tance thereof does not reasonably appear to
not required when it would be disloyal to undermine the judge’s integrity or impar-
present client] The attorney therefore acted tiality. A judge may accept benefits associ-
properly in simply suggesting that the ated with her spouse’s business activity that
prospective client consult other counsel. incidentally benefit the judge. [CJC Rule
(B) is incorrect because a lawyer does owe 3.13(B)(8)] (B) is wrong because it ignores
 PRACTICE EXAM 1 243.

the general rule on family members’ law practice, she has had significant experi-
accepting gifts and other benefits. (C) is ence as a trial lawyer. A lawyer is allowed
wrong because such benefits of a spouse to state the fields of law in which she does
are not subject to the public reporting or does not practice. [ABA Model Rule 7.2,
requirement. [CJC Rule 3.13(B)] (D) is comment 9] (B), (C), and (D) are all incor-
wrong because if the prize is proper under rect because they would permit “Harvard
CJC Rule 3.13(B)(8), it does not become Trained” or “Never Lost a Jury Trial” (or
improper simply because the insurance both) to remain in the advertisement.
company may later appear as a litigant in
the judge’s court. Answer to Question 10

Answer to Question 8 (A) The new attorney is not subject to disci-

pline for this fee arrangement if $5,100 is
(D) The attorney should state what she knows a reasonable fee. The ABA Model Rules
about the law student, including mentioning flatly prohibit a lawyer from using a contin-
his burglary conviction. A lawyer who is gent fee arrangement when the payment
properly asked for information about a bar of the fee is contingent on the securing
applicant’s character has a duty to respond of a divorce or an amount of alimony or
and to do so accurately. [ABA Model Rule support (or property settlement in lieu
8.1] (A) is wrong because the attorney does thereof). The Rules do not, however,
have relevant information—she knows prohibit a lawyer from using a contingent
about the law student’s burglary convic- fee to recover money that is past due under
tion, and that is relevant to (but certainly a child support order. [ABA Model Rule
not conclusive of) the inquiry about his 1.5(d)(1) and comment 6] In the wife’s case,
character. (B) is wrong because a lawyer’s she had already obtained her divorce, and
duty to provide bar applicant information the amount of alimony and child support
is not confined to the state in which the payments had already been set. The only
lawyer practices. (C) is wrong because problem was extracting the money from
the burglary conviction is relevant to the the husband; thus, the new attorney’s use of
character inquiry, and nothing indicates that the contingent fee arrangement in this case
the attorney learned about it in confidence. was proper. The contingent fee arrange-
ment is particularly appropriate in light of
Answer to Question 9 the wife’s lack of money to pay a regular
fee and State A’s failure to provide for
(A) The attorney would be subject to discipline fee shifting in domestic relations matters.
for the last two statements in her advertise- [See Restatement §35, comment b] (B) is
ment. It is misleading for her to state that wrong because it ignores the possibility that
she is “Harvard Trained,” because reason- $5,100 may be unreasonably high for the
able readers could interpret that to mean work the new attorney did. Also, the new
that she received her law degree from that attorney would not necessarily be subject
school. [See ABA Model Rule 7.1 and to discipline for using this fee arrangement
comment 2] The statement “Never Lost a even if the wife had money to pay a regular
Jury Trial,” although literally true, could fee. (C) is wrong because the collection
create unjustified expectations and is there- of past due amounts of child support on
fore misleading. [See ABA Model Rule 7.1 a contingency fee basis is not considered
and comment 3] The reference to “Trial a prohibited contingent fee in a domestic
Attorney” would not make the attorney relations case under the Rules. (D) is wrong
subject to discipline. Given her brief time in
244. PRACTICE EXAM 1

because it invokes a nonexistent policy. attorney must do, not what he would be
Contingent fees are generally allowed, allowed to do. ABA Model Rule 1.2 states
even though they typically involve taking that a lawyer must not counsel or assist a
a share of money awarded for the support client in conduct that the lawyer knows is
or compensation of the client (as in the criminal or fraudulent. Here, the attorney
ordinary personal injury case). must refuse to represent the art dealer in
the sale of the painting to the television
Answer to Question 11 personality because the sale would be
fraudulent—the attorney knows that the
(D) The attorney’s actions were not proper painting is not a van Gogh as the art dealer
because a lawyer may not draft a legal represented to the television personality.
instrument for a client that gives a substan- ABA Model Rule 1.6(b) permits a lawyer
tial gift to the lawyer, unless the client is to reveal a client’s confidential informa-
a relative of the lawyer. [ABA Model Rule tion to the extent necessary to prevent the
1.8(c)] The deed creating the joint tenancy client from committing a crime or fraud
bestows a substantial gift on the attorney, that would result in substantial financial
particularly in light of the high likelihood harm to a person, if the client is using or
that the client would die first. The transac- has used the lawyer’s services to further
tion is also particularly suspect in light of the crime or fraud. A lawyer also may
the attorney’s failure to explain the joint reveal confidential information if the client
tenancy to the client. [See ABA Model has already acted and the disclosure will
Rule 1.8(a)—business transaction with mitigate the consequent financial harm.
client requires full disclosure of interest Thus, the attorney is permitted to disclose
granted lawyer] (A) is wrong because the information to law enforcement authorities
court’s determination does not free the in order to prevent harm to the television
attorney from discipline for drafting the personality and possibly mitigate subse-
deed that bestowed the gift on him. (B) quent financial harm caused by the first
is wrong because the right of survivor- transaction to the art museum; however,
ship is a substantial gift regardless of who the attorney is not required to do so. The
actually dies first; thus, it was not proper same holds true regarding the attorney’s
for the attorney to draft the document. warning the television personality about
(C) is wrong because it is overbroad. A the proposed sale. Consequently, (A) and
lawyer may enter into a business transac- (B) are wrong. (C) is also wrong because
tion with a client, provided he follows even if it can be argued that the attorney’s
certain safeguards. Here, for example, had revealing information about the fraudulent
the attorney met all of the requirements of sale to the museum would mitigate subse-
ABA Model Rule 1.8(a), the transaction quent financial harm, the attorney is not
would have been a proper business transac- required to reveal the art dealer’s confiden-
tion. However, the transaction still would tial information.
have been improper because the attorney
drafted the deed. Answer to Question 13

Answer to Question 12 (D) The attorney may reveal the confidence

even if doing so will subject his client to
(D) The attorney must refuse to represent the civil or criminal liability. A lawyer may
art dealer in the present transaction. Note disclose a client’s confidence “to establish a
that the call of the question asks what the defense to a criminal charge or civil claim
 PRACTICE EXAM 1 245.

against the lawyer based upon conduct in mother’s testimony for two reasons: First,
which the client was involved . . . .” [ABA the question asks whether the attorney may
Model Rule 1.6(b)(5)] Although the lawyer offer the testimony, not whether he may
must wait until the assertion of miscon- refuse to offer it. Second, there is nothing
duct arises, he need not await the filing of in the facts to indicate that the attorney’s
a formal charge or complaint. The lawyer belief that the testimony is false is reason-
may defend himself by responding directly able. Thus, the attorney may call the defen-
to a third party who has made such an dant and his mother as trial witnesses.
assertion. [See Restatement §64, comment
c] (A) is wrong because the lawyer may Answer to Question 15
disclose the fact even if doing so harms
the client. (C) is wrong because the lawyer (B) The attorney’s handling of the matter was
need not wait for the complaint to be filed, not proper because she should have made
as explained above. (B) is wrong because it sure that the client was promptly notified
ignores the self-protection exception to the that the check had arrived. When someone
general rule of confidentiality. delivers money to a lawyer to hold for the
lawyer’s client, the lawyer must promptly
Answer to Question 14 notify the client that the money has arrived.
[ABA Model Rule 1.15(d)] Had the client
(A) A lawyer has a general duty of loyalty to known that the money had arrived, she
the client and a general duty to represent could have promptly collected it and put
the client with dedication and commit- it to her own use. (A) is wrong because
ment to the client’s interest and with zeal the IOLTA program required the funds to
in advocacy on the client’s behalf. When be deposited in an IOLTA account. (C) is
acting as an advocate for a client, as the wrong because although the attorney did
attorney is doing here, a lawyer must comply with the IOLTA requirement, she
resolve reasonable doubts in favor of his failed to take appropriate steps to have the
client. There are certain situations under client promptly notified that the money had
which the lawyer must act in a way that is arrived. (D) is wrong because the client was
adverse to his client, but each of the situa- harmed; she was deprived of the use of the
tions requires that the lawyer have actual money during the month that the attorney
knowledge of adverse facts, not just doubt was on vacation.
or suspicion. [See ABA Model Rule 3.3(a)]
Here, the attorney does not have actual Answer to Question 16
knowledge that the defendant and his
mother are lying or even any knowledge of (C) Both the partner and the associate may
circumstantial facts that indicate that they work on the matter, assuming the associate
are lying; at best, he has a strong suspicion complies with the applicable federal
based on his instincts. This falls well short statutes and regulations concerning former
of actual knowledge. Note that a lawyer government employees. Drafting a piece
may refuse to offer evidence if he reason- of legislation is not regarded as a “matter”
ably believes that it is false, other than the for purposes of the legal ethics rules on
testimony of a criminal defendant. [ABA former government employees. [ABA
Model Rule 3.3(a)(3)] This rule does not Model Rule 1.11(e); ABA Formal Op. 342
apply to the defendant’s testimony because (1975)] Therefore, the associate may advise
the defendant is a criminal defendant; the state university. Because the associate is
it also does not apply to the defendant’s not disqualified, neither is her firm. Thus,
246. PRACTICE EXAM 1

the partner may also work on this project. person-to-person contact, as long as it does
(A) is wrong because, as discussed above, not contact persons who are known to need
the associate’s congressional work disquali- legal services in a particular matter covered
fies neither the associate nor the partner. by the plan.
(B) is wrong because it states one of the
requirements for the partner’s representa- Answer to Question 18
tion had the associate been disqualified.
(D) A lawyer who represents a client in a
As discussed above, the associate is not
matter must not communicate about the
disqualified and thus need not be screened
matter with a person the attorney knows
off. (D) is wrong for the reasons stated
is represented by counsel, unless that
above. Moreover, it is not the state univer-
person’s counsel consents or the commu-
sity that would need protection if this were
nication is authorized by law or a court
a “matter” for the purpose of disqualifica-
order. [ABA Model Rule 4.2] Here,
tion under the conflict of interest rules. In
however, the attorney did not communi-
that case, the associate would have been
cate with the tenant. Rather, the attorney
screened off, the associate would not be
told the landlord to talk with the tenant
apportioned any part of the fee, and written
if she thought it would be helpful, and
notice would be promptly given to the
even took care to make sure that the
government agency.
parties would not finalize any agreement
Answer to Question 17 without consulting their respective counsel.
Although a lawyer must not use an agent
(A) The attorney will not be subject to discipline to do what the lawyer is prohibited from
if he becomes an authorized provider under doing [ABA Model Rule 8.4(a)], that was
the insurance company’s plan. The insur- not the case here. Comment 4 to Rule 4.2
ance company has set up a prepaid legal states that parties may communicate with
services plan of the kind referred to in the each other directly, as the landlord and
ABA Model Rules. A lawyer may receive tenant did, and a lawyer is not prohib-
legal business through such a plan, unless ited from advising a client concerning a
the operator of the plan uses live person-to- communication that the client is legally
person contact to solicit people who it knows entitled to make. Because the attorney
are in need of legal services in a particular was not required to obtain the consent of
matter covered by the plan. [ABA Model the tenant’s lawyer in this situation, (A) is
Rule 7.3(e)] (B) is wrong because there is no incorrect. Similarly, (B) and (C) are incor-
rule concerning the selection of counsel in rect because the no-contact rule does not
a legal services insurance plan. (C) is also apply to these facts. Even if it did apply,
wrong because it would be an antitrust viola- these choices do not accurately reflect Rule
tion (and also an ethics violation) for a group 4.2. The attorney must obtain consent from
of lawyers to conspire to follow a minimum the represented person’s lawyer before
or maximum fee schedule [see Arizona communicating with the person about the
v. Maricopa County Medical Society, 457 matter; notifying the lawyer is not suffi-
U.S. 332 (1982)], but it is neither illegal nor cient. Additionally, it is immaterial whether
unethical for a lawyer to agree to follow an a represented person initiates or consents to
insurance company’s maximum fee schedule a prohibited communication.
for work done for that company’s insured. Answer to Question 19
(D) is wrong because it is too broad. ABA
Model Rule 7.3(e) permits a lawyer to partic- (D) The attorney should decline to serve as trial
ipate in a legal services plan that uses live counsel because she can foresee that she
 PRACTICE EXAM 1 247.

will be called as a witness. A lawyer must of a contingent fee. (C) is wrong because
not act as an advocate at a trial at which the the fee agreement between the producer
lawyer is likely to be a necessary witness. and the attorney does not require the
[ABA Model Rule 3.7(a)] The attorney author’s informed consent. The author is not
was the only person other than the parties a current or former client of the attorney,
present at the negotiating session. The and the author has no apparent interest
landowner will almost certainly call the that would cause the attorney a conflict
attorney as a witness. Because the attorney and force him to disclose and explain the
can foresee at the outset that she will likely material risks and available alternatives and
be called as a witness, she should decline obtain the author’s consent.
to serve as trial lawyer for the contractor,
even if the contractor is willing to consent Answer to Question 21
to the conflict of interest. [ABA Model
Rule 1.7(a); comment 6 to ABA Model (B) A “forwarding fee” is another term for a
Rule 3.7] (A) is wrong because a person’s “referral fee,” and payments for referrals
choice of counsel is limited by the restraints are prohibited. [ABA Model Rule 7.2(b)]
imposed by the ethics rules. The client may (A) is proper because a lawyer may take on
choose the attorney, but the attorney cannot a case that he is not competent to handle if
ethically accept the employment. (B) is he obtains his client’s consent to associate
wrong because the attorney cannot refuse a lawyer who is competent to handle it.
to testify if the landowner calls her to the [Comment 2 to ABA Model Rule 1.1] (C)
witness stand. (C) is wrong because if a is proper because a lawyer may refer her
lawyer is called to the witness stand and client to another lawyer who is competent
sworn to tell the truth, she must do so, even to handle the case. Making a sound referral
if it is prejudicial to her client. can take a significant amount of time,
especially if the referring lawyer needs
Answer to Question 20 to research the backgrounds of several
lawyers with whom she is not personally
(D) The attorney’s fee agreement is proper familiar. It is appropriate for the refer-
even though it gives the attorney a personal ring lawyer to charge her client for the
interest in the subject of the litigation. The time spent making the referral, subject of
attorney has acquired a personal interest in course to the general rule on reasonable-
the movie, which is in one sense the real ness. [ABA Model Rule 1.5] (As a practical
subject of the litigation. However, the rule matter, however, many lawyers would not
against acquiring a personal interest in the charge a regular client for making such a
subject of litigation has an exception that referral.) (D) is proper because a lawyer
allows a lawyer to represent a client for a may take on a case that he is not competent
contingent fee. [ABA Model Rule 1.8(i)(2)] to handle if he undertakes the study neces-
(A) is wrong because the rule on literary sary to provide competent representation.
rights contracts covers only literary works [Comment 2 to ABA Model Rule 1.1]
based in substantial part on information
relating to the representation. Here, the Answer to Question 22
movie concerns John Dillinger, not the
producer. [See ABA Model Rule 1.8(d)] (C) It would be proper for the attorney to
(B) is wrong because, as discussed above, participate in the debate and cast her vote
a lawyer may acquire an interest in the on the proposed legislation, provided
subject matter of the litigation in the form that she informs the committee that she
248. PRACTICE EXAM 1

represents a client whose interests could which would be designed to improve the
be materially benefited by the statute. A law, would not constitute a promise that is
lawyer may participate in a law reform inconsistent with the performance of his
activity that will affect the interests of the adjudicative duties.
lawyer’s client. [ABA Model Rule 6.4]
When a lawyer knows that a client will be Answer to Question 24
materially benefited by the activity, the
lawyer must disclose that fact, but she need (D) The attorney is not subject to discipline.
not name the client. (A) is wrong because Because the employee is a lawyer-employee
a lawyer is not prohibited from engaging of the attorney, she is regarded as being “in
in a law reform activity that might benefit the same firm.” She and the attorney are
her client. (B) is wrong because a lawyer thus allowed to split fees without complying
is not prohibited from participating in a with the rules that govern fee splits between
law reform activity, unless the participa- lawyers who are not in the same firm.
tion would create an impermissible conflict [ABA Model Rule 1.5(e)] (A) is wrong for
of interest. [ABA Model Rule 1.7(a)] That the reason just stated. (B) is wrong because
is not the case here. A client who hires a no Rule requires the attorney to super-
lawyer does not thereby purchase the right vise the lawyer-employee at every turn, so
to control the lawyer’s views and activi- long as he takes reasonable steps to assure
ties in all contexts. [See ABA Model Rule that she performs her work competently
1.2(b)] The attorney may even advocate and otherwise within the bounds of legal
new legislation that she thinks is sound that ethics. [See ABA Model Rule 5.1—super-
would harm the biotechnology firm’s sales. visory duties of lawyers within a firm] (C)
[See ABA Model Rule 6.4] (D) is wrong is wrong; a law firm may state particular
because the attorney need not disclose the fields of law that the firm’s lawyers handle.
name of her client; simply disclosing the [ABA Model Rule 7.2, comment 9]
fact of representation will inform the legis-
lation committee of her possible bias. Answer to Question 25
Answer to Question 23 (B) The attorney is subject to criminal liability
if he intended to induce the judge to
(B) The judge may testify at a public hearing decide the case in the plaintiff’s favor. The
in connection with matters concerning common law crime of bribery consists of
the law. [CJC Rule 3.2(A)] (A) is wrong the corrupt payment or receipt of anything
because there is no rule requiring “equal of value in return for official action. The
time.” (C) is wrong because it is overbroad. $50,000 loan was obviously a thing of
The general rule against judicial involve- value. Thus, if the attorney intended the
ment in politics limits only some types of loan as an inducement to the judge to
political activities, not including legislative decide the case in favor of the plaintiff,
testimony. [CJC Canon 4] (D) is wrong then the attorney is guilty of bribery. (A)
because, with respect to issues that are is wrong because in deciding whether the
likely to come before the court, a judge is attorney is subject to criminal liability,
prohibited from making pledges, promises, it is the attorney’s intent that counts, not
or commitments that are inconsistent with the judge’s intent. (C) is wrong because
the impartial performance of his duties. the attorney’s crime was complete when
[CJC Rule 4.1(A)(13)] That Rule does not he gave the loan, even though the judge
apply here because the judge’s testimony, never had to decide the case. (D) is wrong
 PRACTICE EXAM 1 249.

because bribery does not require an avoid putting the client into the difficult
outright gift; a $50,000 loan is a thing of position of treating the lawyer simultane-
value, especially a loan with no repayment ously as friend and foe. The conflict can be
date, no promissory note, and no interest solved only by informed consent, confirmed
specified. in writing, from both the client and the
grocery store. (A) is wrong because the
Answer to Question 26 rule prohibiting the representation applies
regardless of whether the solo practitioner
(D) The steel company’s attorney need not has obtained relevant confidential informa-
disclose the FTC ruling because the court tion. (B) is wrong because the conflict is
need not follow the decision. A lawyer can not obviated by the shortage of legal talent
be disciplined for failing to cite the court in the small town. (C) is wrong because
to legal authority that is “directly adverse” the Rule applies even if the two cases are
to the client’s position and is from the unrelated.
“controlling jurisdiction.” [ABA Model
Rule 3.3(a)(2)] Although the decision is Answer to Question 28
directly adverse to the steel company’s
position, the facts state that FTC decisions (D) It was improper for the lawyer to hold
do not control in the United States Courts the client’s file. (A) is true because one of
of Appeal. Thus, the decision is not from the grounds for permissible withdrawal
the “controlling jurisdiction.” (A) is wrong is that the client has made the lawyer’s
because in order to invoke the disclosure task unreasonably difficult (e.g., the client
rule, the decision must be from a control- will not cooperate with the lawyer). [ABA
ling jurisdiction, not merely persuasive. (B) Model Rule 1.16(b)(6)] (B) is true because
is wrong because it states only one portion a lawyer must not communicate about a
of the test that triggers the disclosure rule. matter with a person who is represented
While true that the decision is adverse, it is by another lawyer in the matter, unless
not from a controlling jurisdiction, and thus that other lawyer consents. [ABA Model
need not be revealed. (C) is wrong because Rule 4.2] (C) is true because there is no
although the Rule as stated is true, in this reason in this case for the wife’s attorney
case we are not concerned with harmful to charge the wife less than the full amount
facts. The issue is whether the steel compa- (assuming, of course, that the fee is reason-
ny’s attorney must reveal harmful law. able in the circumstances). However, a
lawyer has a duty to turn over the papers to
Answer to Question 27 the client. [See ABA Model Rule 1.16(d)]

(D) It would not be proper for the solo practi- Answer to Question 29
tioner to represent the grocery store unless
both the client and the grocery store give (C) A potential problem arises when the
informed consent, confirmed in writing, content of a brochure is improper or when
to the representation. A lawyer who is the printed material is used as part of an
presently representing a client in one act of solicitation. Here, the content was
litigation matter should not simultaneously proper, but when the attorney gave the
oppose that client in a different litiga- brochure to the hospitalized pedestrian,
tion matter, even if the two matters are he crossed the line into impermissible
unrelated. [ABA Model Rule 1.7(a) and in-person solicitation. [See ABA Model
comment 6] The purpose of the rule is to Rule 7.3; see also Ohralik v. Ohio State
250. PRACTICE EXAM 1

Bar Association, 436 U.S. 447 (1978)— Answer to Question 31

noting the particular potential for undue
influence and overreaching in the hospital (D) The husband may represent his regular
context, where individuals are often client if the client gives informed consent,
especially vulnerable] (A) and (B) are confirmed in writing, to the representation.
incorrect because publishing the brochure, His wife is likely to inherit her father’s
in and of itself, is not problematic, just as interest in the real estate syndicate. That
the act of printing business cards is fully gives the husband a personal interest in
permissible. (D) is incorrect because the the real estate syndicate, albeit an attenu-
truthfulness of the brochure’s contents does ated interest. If the husband is to represent
not counteract the attorney’s impropriety in his regular client in selling land to the
providing his contact information during a real estate syndicate, he must first disclose
hospital visit. his personal interest to the client. If the
client gives informed consent, confirmed
Answer to Question 30 in writing, then the husband may repre-
sent the client. [ABA Model Rule 1.7(b)]
(C) The peer counselor may disclose the (A) is wrong because informed, written
statement even if the lawyer objects. The consent will solve the potential conflict of
state ethics rule on confidentiality treats interest. (B) is wrong because informed
communications between a lawyer and consent, confirmed in writing, will solve
his peer counselor just like communica- the conflict problem. Furthermore, the
tions between an attorney and a client. If “appearance of impropriety” is not a
the counselor had heard one of her clients basis for discipline or disqualification
make this threat, she could have warned under the ABA Model Rules. This is an
the police and the intended victim. An outdated concept from the old ABA Model
attorney may reveal confidential infor- Code. (C) is wrong because the husband’s
mation to the extent she reasonably personal interest is significant, even
believes necessary to prevent reason- though it is remote.
ably certain death or substantial bodily
harm. [ABA Model Rule 1.6(b)(1)] Thus, Answer to Question 32
the peer counselor may warn the client
and the police. (A) is wrong because the (C) The criminal attorney will be subject to
peer counselor may act to prevent the civil liability in a legal malpractice action
lawyer from causing substantial bodily brought by the swimming coach for failing
harm. The lawyer’s consent is not neces- to object to the second trial on double
sary. [ABA Model Rule 1.6(b)(1)] (B) jeopardy grounds. A reasonably competent
is wrong because if an attorney reason- criminal defense attorney would know that
ably believes that her client (or anyone a defendant is put in jeopardy when a jury
else) is about to inflict substantial bodily is empanelled and sworn, not to mention
harm on someone, she may take steps to that the prosecutor started presenting her
prevent it, even if she is not certain that case-in-chief. The swimming coach was
the client (or other person) will do it. (D) obviously a proper plaintiff, and he was
is wrong because the state ethics rule on injured by the criminal attorney’s error;
confidentiality equates the peer counselor he should be able to recover at least part
relationship with the relationship between of the $5,000 attorneys’ fee, plus damages
an attorney and client; thus, the ability to for his anguish and for the reputational
disclose is the same. injury caused by the conviction at the
second trial. Note that (C) provides that
 PRACTICE EXAM 1 251.

in the malpractice action the swimming because the division of responsibility does
coach must prove by a preponderance not solve the partnership with a nonlawyer
of the evidence that he was innocent of problem. (D) is wrong because the devel-
the underlying criminal offense. That is oper is not engaging in activities that could
required by the law of most states that have be construed as practicing law. All of the
ruled on the issue. [See Restatement §53, legal work (i.e., work calling for the profes-
comment d] Observe that in this particular sional judgment of a lawyer) is done by the
case, a good argument can be made for attorney.
allowing the swimming coach to recover
even without proof of innocence. Here, the Answer to Question 34
malpractice was the criminal attorney’s
failure to object to the second trial. If the (A) The young attorney may not seek to have
attorney had acted competently, the second her name included on the list because
trial would never have taken place, and the naming the bank as executor or trustee in
swimming coach would have lawfully gone wills and trusts is a tacit condition of being
free, even if he were unquestionably guilty on the list. A lawyer generally may not give
of the assault. [See Levine v. Kling, 123 anything of value to a person for recom-
F.3d 580 (7th Cir. 1997)—Judge Posner’s mending the lawyer’s services. [ABA Model
dictum] (A) and (D) are incorrect because Rule 7.2(b)] When a lawyer names a bank
they overlook the $5,000 fee and other as institutional executor or trustee for a
less tangible injuries the swimming coach client, the lawyer confers a monetary benefit
suffered. (B) is incorrect for the reasons on the bank in the form of the fees the bank
stated above with respect to (C). will earn from the client’s trust or estate.
Here, the bank apparently lists only those
Answer to Question 33 lawyers who are willing to compensate it in
this manner. That makes the arrangement
(C) The attorney is subject to discipline “exclusive” and prevents the arrangement
because she and the real estate developer from being a reciprocal referral agreement
are partners in the business described of the kind permitted by ABA Model Rule
in the question. A lawyer is prohibited 7.2(b)(4). Moreover, the bank’s scheme
from entering into a partnership with a creates a conflict of interest between the
nonlawyer if any of the partnership activi- attorney and the client who needs an institu-
ties constitutes the practice of law. [ABA tional executor or trustee. The attorney has
Model Rule 5.4(b)] The rationale and social a personal interest in staying on the bank’s
policy behind this Rule have been sharply referral list, and that interest may skew the
questioned, but the ABA has not abandoned attorney’s judgment in advising a client
its traditional distrust of partnerships with whether to name the bank or a different
nonlawyers. [See Hazard & Hodes, §45.7] institution. [See ABA Model Rule 1.7(a)]
(A) is wrong because although there are (B) is wrong because it is overbroad and
potential conflicts here in that the attorney does not hit on the specific problem with
appears to work partly for the investors the bank’s scheme. In proper circumstances,
and partly for the developer and herself in a lawyer may solicit business through an
putting the real estate projects together, intermediary, e.g., through a prepaid legal
informed consent, confirmed in writing, service program or an approved lawyer
by the investors will solve these conflict referral service. (C) is wrong because a
issues. In any event, the attorney is still client is entitled to the unbiased advice of a
subject to discipline for entering into the lawyer in deciding what institutional trustee
partnership with a nonlawyer. (B) is wrong or executor to name. Even if the bank is
252. PRACTICE EXAM 1

just as good and its fees are as reasonable of the parties. Here, the attorney does not
as other institutional fiduciaries, the bank’s represent one of the parties. Furthermore,
scheme deprives clients of unbiased advice. the information is confidential and cannot
(D) is wrong because clients who use the be disclosed to the disadvantage of the client
bank for their routine banking needs might regardless of whether the attorney sends
nevertheless desire to name some other copies to all parties.
institution as their executor or trustee; in
any event, they are entitled to unbiased legal Answer to Question 36
advice on that subject. (B) The attorney must advise the president to
keep the records because the records have
Answer to Question 35 potential evidentiary value if the company
(D) The attorney’s actions were not proper is sued. A lawyer must not counsel or
because her information was gained from assist a person to destroy material that
a confidential lawyer-client communica- has “potential evidentiary value.” [ABA
tion. [See ABA Model Rule 1.6] It was both Model Rule 3.4(a)] Although it is not
privileged and confidential, and could be certain that the company manufactured
disclosed only if one of the exceptions to the dishwasher in question, the president
the duty of confidentiality applies. None of said he was “pretty sure that it was one of
the exceptions applies here. The fact that the ours.” Furthermore, it is not certain that
man did not hire the attorney to represent the company will be sued if it was one of
him does not affect her duty of confidenti- their washers, but the chances are good that
ality; he was seeking legal advice and repre- it will be. If commencement of proceed-
sentation when he spoke to her. [See ABA ings can be foreseen, the documents have
Model Rule 1.18(b)] (A) is wrong because potential evidentiary value and cannot be
there is no exception to the duty of confiden- destroyed. [Comment 2 to ABA Model
tiality to prevent a fraud on the court when Rule 3.4] (A) is wrong because even if the
the lawyer is not appearing before the court. company’s records retention program called
(B) is wrong because this too does not fit for the routine shredding of these records
within any exception to the duty of nondis- long ago, they were not shredded then,
closure. A lawyer may reveal confidential and they have potential evidentiary value
information to the extent she reasonably now. (C) is wrong because commence-
believes necessary to prevent, mitigate, or ment of proceedings is foreseeable. (D) is
rectify substantial injury to the financial wrong because the standard is backward.
interests of another that is reasonably certain The records should be preserved until the
to result or has resulted from the client’s company is certain that the dishwasher
commission of a crime or fraud, if the client in question was not manufactured by the
has used the lawyer’s services in furtherance company.
of such crime or fraud. [ABA Model Rule
1.6(b)(3)] Here, the facts do not indicate Answer to Question 37
that the man used the attorney’s services
(C) The attorney’s conduct was not proper
in furtherance of his perjurious testimony.
unless he informed the legislators that he
Thus, although the perjury could result in
was appearing in a representative capacity.
substantial injury to the actor’s financial
When a lawyer appears before a nonad-
interests, the attorney is not permitted to
judicative body on behalf of a client, he
reveal the confidential information. (C) is
must disclose that he is acting in a repre-
wrong because it states the rule for an ex
sentative capacity. [ABA Model Rule 3.9]
parte communication to the judge by one
 PRACTICE EXAM 1 253.

One important purpose of the Rule is to rather than the witness’s memory. (D) is
enable the members of the nonadjudicative a generally correct statement, but it does
body to assess the biases that may influ- not apply here. A criminal defense lawyer
ence the lawyer’s testimony. In this case, must indeed resolve doubtful facts in her
the legislators might well think that the client’s favor, but the state of the bystand-
attorney was speaking in his capacity as er’s memory was not a doubtful fact—the
a wetlands expert, rather than as a devel- bystander told the attorney at the outset
oper’s spokesman. (A) is wrong because the that he “simply could not remember what
attorney should have told the legislators that color the traffic light was.”
he was acting in a representative capacity,
whether or not his testimony was consistent Answer to Question 39
with his own views. (B) is wrong; indeed,
the fact that he is an expert in his own (C) The law professor would be subject to
right makes his appearance particularly discipline for representing the elderly
misleading. (D) is wrong because it invokes couple because his earlier service as neutral
a nonexistent rule. There are limits on when arbitrator creates a conflict of interest. A
a client’s trial counsel may testify in a court lawyer must not represent a private client
proceeding, but no such limits apply in in a matter in which the lawyer has earlier
nonadjudicatory proceedings. participated personally and substantially
while serving as an arbitrator. [ABA
Answer to Question 38 Model Rule 1.12(a)] (A) is wrong because
the consistency of his position does not
(A) The attorney is subject to criminal liability solve the conflict of interest. (B) is wrong
because she knew that the fifth bystander because it does not go far enough. Informed
did not remember the color of the light. consent, confirmed in writing, by both
The crime of subornation of perjury is the landowners would solve the conflict, but
corrupt procurement of perjured testimony. consent by the elderly couple alone will
[See R. Perkins & R. Boyce, Criminal Law not suffice (and their consent was not
(hereinafter “Perkins & Boyce”) 524-26 confirmed in writing). (D) is wrong because
(3d ed. 1982)] Perjured testimony means it invokes a nonexistent rule; unlike judges,
a false oath in a judicial proceeding in lawyers are not expected to be impartial.
regard to a material matter. [Id.] A false Here, the law professor would be acting as
oath means a willful and corrupt sworn an advocate, not as a judge or arbitrator;
statement made without sincere belief in its thus, he should be partial to his client. The
truthfulness. [Id.] In this case, the false- issue here is not partiality but conflict of
hood was not about the color of the traffic interest.
light, but rather about the fifth bystander’s
memory of the color of the traffic light. Answer to Question 40
The fifth bystander testified that he saw
the light and remembered what color it (D) The communication with the reporters was
was—but in truth, he did not remember. proper, but the statements made to the jury
The attorney knew that the bystander did were not. A judge should not “commend or
not remember, and the attorney knew criticize jurors for their verdict other than
that the bystander knew that he did not in a court order or opinion in a proceeding.”
remember. Therefore, the attorney is guilty A judge’s commendation or criticism may
of subornation of perjury. (B) and (C) impair a juror’s ability to be impartial in
are both incorrect because they focus on a subsequent case. [CJC Rule 2.8(C)] The
the wrong thing—the color of the light, judge’s statements to the jury clearly violate
254. PRACTICE EXAM 1

this Rule; thus, (A) and (C) are incor- Answer to Question 42
rect. Although judges should not comment
on pending cases in a manner that might (A) The attorney may join the board of direc-
interfere with fairness, judges are not tors, but she must refrain from partici-
prohibited from making public statements pating in the decision about the case intake
in the course of their official duties or from guidelines. A lawyer may not participate
explaining for public information the proce- in a legal service board decision that may
dures of the court. [CJC Rule 2.10(D)] The adversely affect one of the lawyer’s clients.
judge’s explanation of the motions to the [ABA Model Rule 6.3(b)] (B) is wrong
reporters was an appropriate way to inform because ABA Model Rule 6.3 encourages
the public of the meaning and significance work with a legal services organization,
of the judge’s decision to reject the $500 even if the organization serves people
million verdict; thus, (B) and (C) are incor- whose interests conflict with the interests of
rect. the lawyer’s clients. (C) and (D) are wrong
because ABA Model Rule 6.3(b) prohibits a
Answer to Question 41 lawyer from taking part in a legal services
organization decision if the decision will
(B) It would not be proper for the attorney adversely affect one of the lawyer’s clients.
to split his fee with the State B lawyer
because the written fee agreement with Answer to Question 43
the client does not comply with the ABA
Model Rules. ABA Model Rule 1.5(e) (B) The judge must not disqualify the attorney
allows a lawyer to split a fee with a lawyer because the employee and the construction
who is not in his firm if: (1) the total fee company gave informed consent, confirmed
is reasonable; (2) the split is in proportion in writing, to the joint representation. The
to the services rendered by each lawyer, interests of the employee and the construc-
or in some other proportion if each lawyer tion company are in potential conflict with
assumes joint responsibility for the matter; respect to the agency issue: If the employee
and (3) the client agrees to the split in a were on a frolic of his own, the construc-
writing that discloses the share that each tion company will not be liable, but if he
lawyer will receive. Here, the written fee were acting within the scope of his duties,
agreement did not specify the share that the construction company will be liable.
each lawyer will receive; thus, a fee split A lawyer may represent two clients in
between the attorney and the State B lawyer civil litigation if their interests are poten-
would be improper. (A) is wrong because tially in conflict, provided that the lawyer:
there is no requirement that a lawyer be (1) reasonably believes he can represent
licensed in the same state as the lawyer both clients effectively; (2) discloses the
with whom he is splitting a fee. (C) is potential conflict and explains how it can
wrong because the written fee agreement harm each client; and (3) obtains informed
with the client did not indicate the share consent, confirmed in writing, from each
that each lawyer will receive, and thus client. Because it appears that the employee
the agreement was improper regardless of was not negligent, the conflict between the
whether the State B lawyer was assuming employee and the construction company
responsibility for his work. (D) is wrong is only potential. The attorney apparently
because even though there was a fee agree- believes that he can represent both parties
ment, it did not comply with the ABA effectively and took all of the right steps to
Model Rules. deal with this potential conflict. Because
the employee and the construction company
 PRACTICE EXAM 1 255.

gave informed consent in writing, the less of what the client wants. (A) is wrong
trial judge should refuse to disqualify the because the files include confidential infor-
attorney. [ABA Model Rule 1.7(b); Restate- mation about the client’s financial affairs,
ment §122] The judge should also consider and the attorney cannot turn them over to
that it is the plaintiffs who seek the disqual- his law partner against the client’s express
ification; one may reasonably conclude that wishes. [ABA Model Rule 1.6] (C) is wrong
they were trying to harass the defendants because the client has asked the attorney to
rather than serve the interests of justice. (A) complete the work promptly. The attorney’s
is wrong because, as discussed above, there recovery may take months or years. The
is a potential conflict between the employee attorney must not continue representing the
and the construction company. (C) is wrong client unless he can complete the work with
because the potential conflict has been reasonable diligence and promptness. [ABA
handled properly and does not create an Model Rule 1.3] (D) is wrong because, as
appearance of impropriety. Furthermore, discussed above, if the attorney believes
avoiding the “appearance of impropriety” his mental and physical conditions prevent
is an outdated concept from the old ABA him from serving the client competently, he
Model Code. The term does not appear in must withdraw.
the ABA Model Rules because its meaning
is too uncertain to be useful in a profes- Answer to Question 45
sional code of conduct. (D) is wrong
because informed consent, confirmed in (B) The attorney may withdraw from the case
writing, is sufficient in this situation. A and keep the employee’s statement in confi-
client cannot be asked to consent when dence. When an organization is the lawyer’s
a disinterested lawyer would conclude client, the lawyer owes a duty of loyalty to
that the client’s interests would not be the organization. When the interests of the
adequately protected in light of the conflict. organization and its constituents conflict,
Here, the conflict is merely potential; thus, the lawyer should remind the person that
a disinterested lawyer could conclude that the lawyer represents the organization and
the clients can agree to the representa- not the person. It would be appropriate
tion. Consequently, the employee’s and the for the lawyer to remind the person that
construction company’s informed consent, communications between them may not be
confirmed in writing, are sufficient to solve protected by the attorney-client privilege,
the potential conflict of interest. and that the person may want to obtain
independent counsel. [ABA Model Rule
Answer to Question 44 1.13] Here, the attorney should not have
asked the question unless he was prepared
(B) A lawyer must withdraw if the lawyer’s for an affirmative answer. He should have
physical or mental condition will materi- known before asking that if the answer
ally impair his ability to represent the was yes, the employee’s interests and the
client. [ABA Model Rule 1.16(a)(2)] The marine supply company’s interests would
client may be right in thinking that hard conflict; thus, the attorney should not have
work will be good for the attorney, but the offered to represent the employee, and
attorney has to be the ultimate judge of his certainly should not have promised to keep
own physical and mental capacity to carry the employee’s statements in confidence.
on. If the attorney believes that his condi- (Note that the attorney could be subject
tion prevents him from serving the client to discipline for this conduct.) The issue
competently, he must withdraw regard- here, however, is what course of action
256. PRACTICE EXAM 1

the attorney may now take. Now that contingent fee in a criminal case, this fee is
the attorney has agreed to represent the not a contingent fee. Whether the attorney
employee, and the employee has confessed gets paid does not depend on the outcome
in confidence, the only thing the attorney of the case; it depends on how well the
can do is withdraw from the matter entirely movie does. (C) is wrong because it is
and keep the employee’s confession in not clear that any amount over $1 million
confidence. [See ABA Model Rule 1.9] is excessive, given that the attorney is
(A) is wrong because he would violate the risking that he will be paid nothing and is
employee’s confidence by disclosing the delaying payment by a substantial period
confession to the Attorney General. (C) of time. (D) is wrong because it misstates
and (D) are wrong because revealing the or incompletely states the Rule. The Rule is
employee’s confession to the marine supply that prior to the conclusion of the repre-
company would also violate the employee’s sentation of the client, a lawyer cannot
confidence. acquire media rights to a story based
substantially on information relating to
Answer to Question 46 the representation. In this case, the movie
does not relate to the current representa-
(B) A lawyer is permitted to “make a state- tion, rather it involves past representations
ment that a reasonable lawyer would in the attorney’s career. While the attorney
believe is required to protect a client from could not disclose any information related
the substantial undue prejudicial effect of to those representations without the clients’
recent publicity not initiated by the lawyer consents, the acquisition of such media
or the lawyer’s client.” [ABA Model Rule rights is not improper.
3.6(c)] The attorney is permitted to make
these clarifying statements in response to Answer to Question 48
the true, but incomplete, statements made
by the prosecutor at a press conference. (D) ABA Model Rule 1.18 provides that a
Thus, (D) is incorrect. (A) and (C) are lawyer must not use or reveal confidential
incorrect because the attorney has 10 years information of a prospective client. [See
of experience handling pro bono criminal also ABA Model Rule 1.6] Here, the infor-
defense cases, and his win-loss ratio may be mation communicated to the patent attorney
reflecting the underlying merits of the cases was not confidential; thus, the patent attor-
rather than the attorney’s trial ability. ney’s undertaking representation of the
pharmaceutical corporation did not create
Answer to Question 47 a concurrent conflict of interest—there is
no significant risk that the representation
(B) This arrangement is proper if the fee is of the pharmaceutical corporation would
reasonable under the circumstances. As be materially limited by the patent attor-
long as the fee paid does not turn out to be ney’s responsibilities to the bioengineering
excessive, taking into account the attor- firm. Consequently, the patent attorney may
ney’s risk of not being paid, the delay in continue to represent the pharmaceutical
payment, etc., this arrangement is accept- corporation. (A) is wrong because it does
able. A lawyer may enter into a business not matter that the bioengineering firm
relationship with a client, provided certain previously consulted the patent attorney
safeguards, such as an opportunity to on the same matter if the patent attorney
consult with independent counsel, are used. did not obtain any confidential information
[ABA Model Rule 1.8(a)] (A) is wrong that would limit her representation of the
because although it is improper to use a pharmaceutical corporation, and she does
 PRACTICE EXAM 1 257.

not breach any duty owed to the bioengi- Answer to Question 50

neering firm. (B) is wrong for the same
reason as (A)—even if the infringement (D) A lawyer is subject to discipline for trying
suit is substantially related to the patent to avoid a court appointment without good
attorney’s conversation with the bioengi- cause. [ABA Model Rule 6.2] (D) is good
neering firm’s representatives, unless the cause because the attorney’s severe depres-
patent attorney obtained confidential infor- sion is preventing him from handling
mation from the bioengineering firm, she his existing caseload competently. [See
may represent the pharmaceutical corpo- comment 2 to ABA Model Rule 6.2—
ration. (C) is not as good as (D) because good cause exists if the lawyer could not
(C) is general, while (D) is specifically on handle the matter competently; and see
point. Here, the patent attorney did not get ABA Model Rule 1.16(a)(2)—requiring
any material confidential information from withdrawal when the lawyer’s physical or
the bioengineering firm’s representatives mental condition materially impairs the
during the preliminary conversation, but if lawyer’s ability to represent the client] (A)
she had, she would be subject to disquali- is not good cause because a lawyer’s belief
fication as defense counsel, even though that the defendant is guilty is not a suffi-
the bioengineering firm never became the cient reason to turn down a court appoint-
patent attorney’s actual client. ment. Competent defense of a murder case
certainly does not require a defense lawyer
Answer to Question 49 to believe in the client’s innocence. (B) is
not good cause because the facts state that
(D) The attorney is subject to litigation sanction the attorney is three years out of law school
because Federal Rule of Civil Procedure and practices criminal defense law. That
11 provides that sanctions can be imposed indicates that his training in criminal law
on a lawyer, firm, or party for filing a and procedure is recent, and that he knows
pleading, motion, or other paper merely how to defend a criminal case, even though
to harass, delay, or multiply expenses for he has not handled a murder case before.
the opponent. [See also Hudson Motors Thus, the attorney cannot claim lack of
Partnership v. Crest Leasing Enter- competence as an excuse for turning down
prises, Inc., 845 F. Supp. 969 (E.D.N.Y. the appointment. [See Hazard & Hodes,
1994)—federal courts have inherent power §51.3] ABA Model Rule 6.2(c) recognizes
to sanction lawyers for frivolous legal that a lawyer may turn down an appoint-
positions to harass or delay; and see 28 ment if the client or cause is so repugnant
U.S.C. §1927—court can impose sanctions to him as to interfere in the lawyer-client
on lawyers who knowingly or recklessly relationship. Neither the attorney’s race nor
multiply proceedings unreasonably and his sympathy for young people who get
vexatiously] (A) is incorrect because it is involved with gangs should be regarded,
beyond the bounds of the law to harass without more, as likely to interfere with
an opponent with a legal position that the the attorney’s ability to represent the police
proponent knows is frivolous. (B) is incor- officer competently. Thus, (C) is not good
rect because Rule 11 allows the court to cause.
sanction both the lawyers and the parties
they represent. (C) is incorrect because Answer to Question 51
lawyers are not subject to litigation sanction
for taking legal positions that they, in good (C) The attorney was not representing either
faith, believe to be meritorious. sister; rather, he was acting as a third-party
neutral to help them resolve their differ-
258. PRACTICE EXAM 1

ences. ABA Model Rule 2.4 permits a nonlawyer professional, if the agreement is
lawyer to serve in that role. ABA Model not exclusive and the referred person is told
Rule 1.12(c) permits screening to avoid a about the agreement. However, comment 8
conflict in this situation. Therefore, (A) and to ABA Model Rule 7.2 cautions lawyers
(D) are incorrect. (B) is incorrect because, that such an agreement should not be
when a lawyer has served as a third-party indefinite in duration. (A) is wrong because
neutral between two conflicted parties, he ABA Model Rule 7.2(b)(4) does not require
cannot later represent one of the parties a reciprocal referral agreement to be in
in that matter, unless both parties give writing. (C) is wrong because reciprocal
informed consent, confirmed in writing. referral agreements are one of four excep-
[ABA Model Rule 1.12(a)] tions to the general rule that a lawyer must
not give something of value for a referral.
Answer to Question 52 [See ABA Model Rule 7.2(b)] (D) is
wrong because ABA Model Rule 7.2(b)(4)
(A) The attorney does not need to be admitted expressly permits reciprocal referral agree-
to practice in the new state because the JAG ments with nonlawyer professionals.
Corps is an organ of the federal govern-
ment, and Army regulations authorize JAG Answer to Question 54
officers to provide legal services to Army
personnel and their dependents on a wide (C) ABA Model Rule 7.6 prohibits “a lawyer
range of personal legal problems. [See or law firm” from accepting an appointed
ABA Model Rule 5.5(d)(2)] But before she legal engagement if “the lawyer or law
advises the officer and his wife, the attorney firm” makes a political contribution “for
must do enough research to become the purpose of obtaining or being consid-
competent on the legal aspects of mobile ered for” that kind of legal engagement.
home financing. [See comment 2 to ABA The tricky part of this question is whether
Model Rule 1.1] (B) is wrong because she a political contribution by one of the firm’s
is willing to undertake the additional study lawyers ought to bar the entire firm from
necessary to become competent in these taking subsequent appointments. Neither
matters, and therefore her current lack of the Rule nor its comments speak directly
knowledge is not dispositive. [See comment to that point, but the purpose of the Rule
2 to ABA Model Rule 1.1] (C) is wrong for would be served by imputing one lawyer’s
the reason stated in the explanation of (A), contribution to the entire firm, just as
above. (D) is wrong because the problem a conflict of interest would be imputed
specifies that Army regulations authorize a under ABA Model Rule 1.10(a). To adopt
legal assistance officer to give legal advice the opposite position would make ABA
on a wide range of personal legal problems Model Rule 7.6 too easy to evade—the
that affect military personnel and their firm could simply ask its lawyers to make
dependents. These regulations reflect the “pay-to-play” contributions from their own
Army’s strong interest in keeping its people pockets. Using a different theory, at least
out of legal troubles no matter what the the founding partner’s colleagues on the
source. management committee should be barred
from accepting appointments from the
Answer to Question 53
attorney general because they knew about
(B) ABA Model Rule 7.2(b)(4) permits a the partner’s political contributions and
lawyer to make a reciprocal referral thanked him rather than stopped him. [See
agreement with another lawyer, or with a ABA Model Rule 5.1(c)—ratification or
 PRACTICE EXAM 1 259.

acquiescence by managing lawyers] (B) clients’ legal troubles.

is wrong for the reasons stated above. (A)
is wrong because the partner’s practice of Answer to Question 56
contributing generously to all candidates
who have a reasonable chance to win the (B) The attorney’s real estate brokerage
attorney generalship demonstrates that business is a “law-related service” within
his purpose is to secure business for the the meaning of ABA Model Rule 5.7,
firm, not to participate legitimately in the and the attorney offers her real estate
political process. (D) is not as good as (C) brokerage services “in circumstances that
because (D) relies on the outdated “appear- are not distinct from” her provision of legal
ance of impropriety” rubric of the old ABA services. [See ABA Model Rule 5.7(a)(1)]
Model Code, Canon 9. That rubric was cast That means that she must follow the rules
aside in the ABA Model Rules—seeking to of legal ethics in her real estate brokerage
avoid even the “appearance of impropriety” work as well as her law work. [Id.] One of
is useful in a person’s own moral creed, but the legal ethics rules forbids a lawyer from
it is too amorphous to be useful in a profes- initiating live person-to-person contact with
sional code of conduct. a person known to need legal services in a
particular matter when a significant motive
Answer to Question 55 for doing so is the lawyer’s pecuniary gain.
[See ABA Model Rule 7.3(b)] Therefore,
(A) (A) is correct because the retired attorney’s the attorney must not initiate face-to-face
dispensation of legal advice constitutes the contact with potential real estate clients
“practice of law,” and he is doing it in a to interest them in using her brokerage
jurisdiction where he is not licensed. [See services. (A) is wrong because it overstates
ABA Model Rule 5.5(a)] (B) is incorrect the rule expressed in ABA Model Rule 5.7.
because the retired attorney is under no (C) is wrong because it turns ABA Model
obligation to pay bar dues in a state where Rule 5.7 on its head—because the attorney
he no longer lives or practices. (C) is incor- is offering her ancillary service in circum-
rect because one does need to be licensed in stances that are not distinct from her legal
order to dispense legal advice at a walk-in service, she must follow the legal ethics
legal clinic. [See ABA Model Rule 6.5, rule for both kinds of service. (D) is wrong
which loosens the conflict of interest rules because the attorney’s face-to-face pitches
for clinic lawyers but does not authorize violate the no-solicitation rule even if her
them to practice without a license] A law statements are truthful and not misleading.
student or similar unlicensed person can [Compare ABA Model Rule 7.1 with ABA
work at such a clinic under the close super- Model Rule 7.3(b)]
vision of a lawyer, but the question makes
no mention of the retired attorney’s work Answer to Question 57
being supervised. [See comment 1 to ABA
Model Rule 5.3] (D) is incorrect because (D) (D) is false. CJC Rule 2.11(C) explains
there is a lawyer-client relationship between remittal of a judge’s disqualification, and
the retired attorney and his walk-in clients. remittal requires the agreement of all of
[Comment 1 to ABA Model Rule 6.5] One the parties and their lawyers, not the other
element of that relationship is the lawyer’s justices. (A) is true. ABA Model Rule 1.17
duty of confidentiality [ABA Model Rule permits the sale of an entire law practice, or
1.6], and the retired attorney breaches an area of practice, subject to some condi-
that duty when he tells his wife about his tions, all of which are met here. (B) is true.
ABA Model Rule 1.17(d) provides that
260. PRACTICE EXAM 1

when a practice is sold, the fees charged to is wrong for two reasons. First, the admis-
the clients cannot be increased by reason of sibility of this hearsay is irrelevant to the
the sale. (C) is true. CJC Rule 2.11(A)(6)(a) ethics issue. Second, the client’s confession
says that a judge must disqualify himself would likely be admissible if offered by
if he previously served as a lawyer in the the innocent man against the prosecution
matter. because it is a declaration against penal
interest by an unavailable declarant, and
Answer to Question 58 the client’s will and suicide are independent
evidence of the confession’s trustworthi-
(B) The controlling doctrine in this case is the ness. [See Fed. R. Evid. 804(b)(3); see
lawyer’s ethical duty of confidentiality, not also Chambers v. Mississippi, 410 U.S.
the attorney-client privilege. The attorney 284 (1973)—due process violation where
needs to know whether he can voluntarily another man’s confession was excluded in a
reveal the client’s confession, not whether murder trial]
he would be forced to do so if he were put
on the witness stand in a court. ABA Model Answer to Question 59
Rule 1.6(b)(1) states the applicable excep-
tion to the ethical duty of confidentiality: (C) ABA Model Rule 1.13 governs this
A lawyer may reveal confidential informa- question. The attorney has been informed
tion if the lawyer reasonably believes that about the stated intent of a university
doing so is necessary to prevent reasonably admissions director to violate the voter
certain death or substantial bodily harm. initiative in a manner that imperils 45%
One might quibble whether the innocent of the university’s funding. The attorney
man’s death is “reasonably certain” when began her conversation with the admissions
his trial has not even started, but surely the director in a proper manner by reminding
ethics rule should not be read to require him that she is the university’s lawyer, not
the innocent man to order his last meal his lawyer. However, the attorney may not
before being loosed from the executioner’s allow her personal views about the use of
grip. (A) is wrong because ABA Model race in university admissions to affect how
Rule 1.6(b)(1) gives the lawyer discretion she responds to the director’s stated intent.
to reveal the client’s confession; the Rule Here, the voters have spoken by passing the
does not force him to do so. [See comment initiative, the university’s board of overseers
15 to ABA Model Rule 1.6] (A few states has acquiesced in the initiative, and the
go farther and require disclosure to prevent constitutional challenge to the initiative has
death or substantial bodily harm, but they failed. If the attorney feels strongly enough
are a small minority.) (C) is wrong for two about the issue to resign her position, she
reasons. First, the applicable doctrine is may do so [see ABA Model Rule 1.16(b)
the ethical duty of confidentiality, not the (4)], but she cannot remain in the general
attorney-client privilege. Second, even if counsel’s office while subverting the
the privilege were the applicable doctrine, voter initiative. Thus, (A) is wrong. (C) is
who could claim it in this situation? The correct; if the attorney cannot convince
client cannot because he is dead. The the admissions director to obey the voter
client’s executor cannot because the client’s initiative, she must “refer the matter to
estate was closed and the executor was higher authority in the organization.” [ABA
discharged. The attorney cannot claim it Model Rule 1.13(b) and comment 4] In this
because a lawyer’s right to claim the privi- instance, the attorney’s immediate boss, the
lege is only derivative from the client. (D) general counsel, is the obvious first choice.
 PRACTICE EXAM 1 261.

ABA Model Rule 1.13 requires the attorney consent, confirmed in writing, from both
to report up the chain of command, not the prospective client and the wife. (B)
leap immediately to the top rung. [Id.] is wrong because the two matters are
Only if her report to the general counsel “substantially related” [ABA Model Rule
proves futile should she take the matter to 1.18(c)] in that use of the information that
the board of overseers, and if she needs the prospective client disclosed to the
to report it to the board of overseers, she attorney could be harmful to the prospec-
should do so forthrightly, not by an “anony- tive client if used in the divorce and
mous leak” that the board would be likely child custody case. (A) is wrong because
to ignore. Therefore, (D) is wrong. (B) it ignores the two possible ways that
is wrong because it appears to allow the would allow the law partner to continue
attorney to report first to the state attorney representing the wife. [ABA Model Rule
general, who should be regarded as outside 1.18(d)(1), (2)]
the structure of the university for this
purpose. [See ABA Model Rule 1.13(c)]
True, the university is part of the state, and
the attorney general is the state’s highest
law enforcement official, but ABA Model
Rule 1.13 seeks to have legal issues resolved
at the lowest possible command level, not
the highest possible level. [Compare Rule
1.13(b) with 1.13(c) and comment 6]

Answer to Question 60

(D) This question is governed by ABA Model

Rule 1.18, which concerns duties to a
prospective client. The information that
the attorney obtained about the prospec-
tive client’s alcohol abuse and his violent
response to the stranger’s comment could
be harmful to the prospective client if the
wife uses it to help prove that the couple
should be divorced and that the prospec-
tive client should not be given custody
of their children. Therefore, the attorney
herself could not represent the wife in
the divorce and child custody case. [See
ABA Model Rule 1.18(c)] The attorney’s
disqualification is imputed to her law
partner. [Id.] However, if the conditions
mentioned in (D) are satisfied, then her
law partner may continue representing the
wife. [See ABA Model Rule 1.18(d)(2)]
(C) is wrong because it calls for informed
consent by the wife only. ABA Model
Rule 1.18(d)(1) would require informed
 PRACTICE EXAM 2 263.

PRACTICE EXAM 2

Question 1 Question 2

A solo practitioner who does municipal bond A justice was on the state supreme court. The
work in a single state is nearing retirement age state’s supreme court rules provide that in capital
and takes on a young attorney as a partner. punishment cases, any one justice of the supreme
Their partnership agreement provides that the court is empowered to grant a stay of execution
solo practitioner will train the young attorney pending appeal to the supreme court. The justice
and will receive 75% of the partnership’s net granted such a stay in a recent criminal case, on
earnings during the first three years, and that the ground that the defendant had been denied the
the young attorney will receive the remaining effective assistance of counsel at his trial. A few
25%. The agreement also provides that if the months later, the justice retired from the supreme
young attorney leaves the partnership before court and went back to private law practice.
the end of the first three years, he will remit to
the solo practitioner 75% of all fees he earns In due course, the supreme court heard the
thereafter from municipal bond work in the appeal in the case, rejected the defendant’s
state. Finally, the agreement provides that if the effective assistance of counsel contention, and
solo practitioner and the young attorney are still affirmed the death penalty. The defendant then
partners when the solo practitioner retires, the commenced a federal habeas corpus proceeding
young attorney will pay the solo practitioner in an appropriate federal district court and asked
retirement benefits of $3,000 per month until that court to appoint a private lawyer to repre-
the solo practitioner’s death; in return, upon his sent him. The district court appointed the retired
retirement, the solo practitioner will turn over to justice to represent the defendant. A key issue
the young attorney all of the partnership assets in the habeas corpus proceeding is whether the
(including goodwill) and will not thereafter defendant was deprived of the effective assis-
practice municipal bond law in the state. tance of counsel at his trial.

Are the solo practitioner and the young May the retired justice represent the defendant
attorney subject to discipline for entering into without getting informed consent, confirmed in
this partnership agreement? writing, from all parties to the habeas corpus
proceeding?
(A) No, because the agreement gives the solo
practitioner retirement payments in return (A) No, because there is reasonable ground to
for the restriction on his right to practice. doubt the justice’s impartiality in the matter.

(B) No, because the agreement enables the solo (B) No, because when the retired justice was a
practitioner to sell the partnership assets supreme court justice he granted a stay of
in return for the restriction on his right to execution to the defendant.
practice.
(C) Yes, because the retired justice was
(C) Yes, because of the restriction on both the appointed by the district court, and his prior
solo practitioner’s and the young attorney’s involvement in the matter is not sufficient
right to practice. grounds for refusing the appointment.

(D) Yes, because of the restriction on the young (D) Yes, because the respondent in the habeas
attorney’s right to practice if he leaves the corpus case is the prison warden, not the
partnership within the first three years. state.

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264. PRACTICE EXAM 2

Question 3 Question 4

A farmer asked an attorney to represent him An attorney is defending her client in a civil
in an eminent domain proceeding in which the fraud case in which it is relevant to know what
state sought to obtain a right-of-way across the advice the client received in confidence from
farmer’s land. The attorney had not handled an an independent certified public accountant.
eminent domain case before, but she planned The jurisdiction has no evidentiary privilege
to make herself competent through diligent for confidential communications between
research and study. As it turned out, the attorney accountants and their clients. The accountant
did not have enough time to do what she had telephoned the attorney and asked how he should
planned, so she associated an eminent domain respond to the plaintiff’s lawyer’s request to
specialist as her co-counsel in the case. The speak with him privately about the case. Reason-
attorney did not consult the farmer about associ- ably believing that the accountant would not be
ating the specialist. The specialist did about 90% harmed by refusing to talk informally with the
of the work in the case, and the attorney did the plaintiff’s lawyer, the attorney responded that if
other 10%. Together they secured a very favor- the plaintiff’s lawyer subpoenaed him to testify,
able result for the farmer, and the attorney sent then he must do so, but encouraged him not
the farmer a fee bill for a reasonable amount. to talk to the plaintiff’s lawyer about the case
The farmer paid the bill, and the attorney unless under subpoena.
remitted 90% of the proceeds to the specialist.
Was the attorney’s advice to the accountant
Is the attorney subject to discipline? proper?

(A) Yes, because she took on a case that she (A) No, because the advice the accountant gave
was not competent to handle. the client was not protected by an eviden-
tiary privilege.
(B) Yes, because she did not consult the farmer
about associating the specialist. (B) No, because the attorney interfered with the
plaintiff’s access to evidence.
(C) No, because the fee split was in proportion
to the work done by the two lawyers. (C) Yes, because the accountant acted as the
client’s agent in rendering accounting
(D) No, because she associated a co-counsel advice to the client.
who was competent to handle the case.
(D) Yes, because it was improper for the plain-
tiff’s lawyer to seek a private discussion
with the accountant about the case.

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 PRACTICE EXAM 2 265.

Question 5 Question 6

Solo practitioners Alpha and Beta share office A client made a preliminary contact with an
space. Each of them has organized her practice attorney to see if she wanted to hire the attorney
as a professional corporation. The sign on their to defend her in a tort case that had been
office door reads: assigned to a judge. The attorney told the client
that the initial consultation was free of charge.
Attorney Alpha, P.C. After listening to the client’s brief outline of the
case, the attorney told her that she knew how
Personal Injury Law to get a favorable decision from that judge. She
___________ said that he would be running for re-election 18
months from now, and he would need money
Attorney Beta, P.C. for his campaign. She advised the client to
send him a $2,000 campaign contribution now,
General Practice with a nice note wishing him well in his bid
for re-election. She explained that the judge’s
Alpha and Beta frequently consult each other opponent in the election would be a local lawyer,
about their respective cases, and they often refer and that although the local lawyer was an honest
clients to one another. Sometimes they work on fellow, his two brothers were associated with
cases together under a fee-sharing arrangement. organized crime. The attorney offered to write
When one of them is out of the office, the other a guest editorial for the local paper, praising
responds to client inquiries to the extent that she is the judge’s judicial record and implying that the
able, and to facilitate that practice, each attorney local lawyer was a crook. With the contribution
has physical access to the other’s client files. A and the letter, the attorney said she thought they
plaintiff hired Alpha to sue a bakery for personal could count on the judge to reach a wise decision
injuries he sustained when he bit into a piece of in the client’s case.
glass in a dinner roll baked by the bakery. The
bakery’s liability insurance carrier asked Beta to The client hired the attorney and sent the
serve as defense counsel in the case. Alpha and judge the $2,000. The attorney wrote the guest
Beta each disclosed her relationship with the other editorial, and it was published in the local paper.
to their clients, and the plaintiff, the bakery, and
the insurance company each gave written consent For which of the following is the attorney not
to Beta’s serving as defense counsel. subject to discipline?
May Beta take the case? (A) Saying that she knew how to get a favor-
(A) Yes, because Alpha and Beta believe that able ruling from the judge.
they can effectively represent their respec-
(B) Advising the client to send the judge a
tive clients.
campaign contribution.
(B) Yes, because the rule of imputed disqualifi-
cation does not apply to Alpha and Beta. (C) Writing the guest editorial.

(C) No, even though Alpha and Beta believe (D) Accepting the case after giving free legal
that they can effectively represent their advice.
respective clients.
(D) No, because Alpha and Beta sometimes
share fees.

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266. PRACTICE EXAM 2

Question 7 Question 8

After a series of brutal muggings, the police An attorney was assigned by the court to
captured a person whom they charged with the defend an indigent teacher at her murder trial.
crimes and the person was eventually ordered to The jury convicted the teacher, and she was
stand trial. Two days before jury selection for the sentenced to 40 years in prison. The attorney’s
case began, a local newspaper reporter cornered court appointment expired at the end of the trial,
the prosecutor, a district attorney, in a cafe. The but he promised the teacher that he would repre-
district attorney said she was certain the defen- sent her without cost in taking an appeal from
dant was the right man because, among other her conviction. The attorney advanced $350 on
things, they had discovered that he was previ- the teacher’s behalf to cover the expenses of the
ously convicted three times for brutal muggings appeal, knowing that the teacher would probably
in other states. not be able to pay him back. While the appeal
was pending, the teacher wrote the manuscript
Is the district attorney subject to discipline for for a book about life in prison. She hired the
making the statement to the reporter? attorney to negotiate a contract with a publisher
to have the book published, and in return for the
(A) No, because prior criminal convictions are contract work, she promised to pay the attorney
a matter of public record. 30% of the royalties from her book.
(B) No, because a lawyer has a First Amend- Is the attorney subject to discipline?
ment right to inform the public about
pending cases. (A) Yes, because he entered into a literary
rights contract with his client while her ap-
(C) Yes, because the district attorney should peal was still pending.
have known that the statement would be
quite likely to prejudice the trial. (B) Yes, because he advanced appeal expenses
for his client, knowing that she probably
(D) Yes, because a prosecutor must not make could not pay him back.
public comment on a pending case.
(C) No, unless 30% of the book royalties is
unreasonably high for the contract negotia-
tion work.

(D) Yes, because he agreed to represent his

client pursuant to a court appointment and
therefore is not entitled to book royalties.

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 PRACTICE EXAM 2 267.

Question 9 Question 10

A probate attorney obtained a decedent’s coin A paralegal works for the law firm of Alpha
collection in order to inventory it. The attorney & Beta. Her direct supervisor is partner Alpha,
put the coin collection into a heavy brown whose practice is limited to international trade
envelope, labeled it as part of the decedent’s law. Partner Beta is the firm’s leading trial
estate, put the brown envelope and the decedent’s lawyer, both in commercial and personal injury
other belongings into the file drawer of his desk, cases. On her way to work one morning, the
and left for lunch without locking the file drawer. paralegal saw a pedestrian run down in a cross-
The attorney’s secretary saw the coins and saw walk by a speeding car. The paralegal rendered
what the probate attorney did with them. While first aid, and while she was waiting with the
the attorney was at lunch, the secretary took the pedestrian for the ambulance, the paralegal
envelope of coins and disappeared, never to be provided the pedestrian with a business card and
seen again. urged him to call the firm to obtain legal repre-
sentation in connection with his injuries. When
Is the probate attorney subject to discipline? she got to work, she told partner Alpha what she
had done. Alpha admonished the paralegal not to
(A) Yes, because the attorney did not put the hand out the firm’s cards in such situations, but
coins in a safe place. he did not discuss the matter with partner Beta.
(B) Yes, because the attorney is responsible for Is Alpha subject to discipline?
his employee’s dishonest act.
(A) Yes, because he failed to warn Beta not to
(C) No, because the loss was proximately take the pedestrian’s case.
caused by the secretary’s dishonesty, not by
the attorney’s conduct. (B) Yes, because as the paralegal’s supervisor,
he is responsible for any unethical act she
(D) No, because the attorney took reasonable commits.
precautions to safeguard the coins in the
circumstances. (C) No, because as a nonlawyer, the paralegal is
free to recommend a lawyer to someone if
she wishes.

(D) No, because the paralegal may not have

been aware at the time that she did
anything wrong.

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268. PRACTICE EXAM 2

Question 11 Question 12

An attorney worked at the United States An attorney and her client endured a stormy
Department of Labor and was responsible for attorney-client relationship until the attorney
compiling certain corporate safety records into finally withdrew due to the client’s repeated
an annual report containing the accident statis- refusals to pay the attorney’s fee bills. At the end
tics. The report is used internally and in discus- of the relationship, the client owed the attorney
sions with companies, but it is not distributed more than $10,000. The client said he would not
to the general public. However, a person may pay because the attorney’s legal services were
obtain a copy of the report by filing a formal “defective.” In a final effort to avoid having to
request under the Freedom of Information Act. sue the client for the unpaid fees, the attorney
During the last three years, Company A has had proposed a settlement agreement to the client.
more accidents than any of the other reporting Under the proposed agreement, the attorney
companies. Six months ago, the attorney left the would accept $4,000 as full payment, reserving
Labor Department and took a job with a private the right to sue the client for the other $6,000 if
law firm. Recently, a person came to the attorney the client filed a State Bar disciplinary complaint
seeking representation in a suit against Company against the attorney or filed a legal malpractice
A for injuries he sustained while working at action against the attorney. The client signed the
Company A’s factory. The attorney agreed to settlement agreement without consulting outside
represent the client. counsel, and the attorney did not suggest that he
should consult outside counsel before signing it.
Is the attorney subject to discipline?
Is the attorney subject to discipline for
(A) Yes, because he obtained relevant informa- entering into the settlement agreement with the
tion about Company A while working as a client?
government attorney.
(A) No, because the attorney brought about an
(B) Yes, because the attorney did not obtain the amicable settlement of the fee dispute with
consent of the Department of Labor. the client.

(C) No, because the information is available by (B) No, because there was a good faith dispute
formal request under the Freedom of Infor- between the attorney and the client about
mation Act. the quality of the attorney’s services and the
amount of fees due.
(D) No, if the attorney does not use the infor-
mation obtained while employed as a (C) Yes, because the attorney did not advise
government attorney to the material disad- the client to seek outside counsel before
vantage of Company A. entering into the settlement agreement.

(D) Yes, because the attorney compromised a

potential malpractice claim by the contract
with her client.

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 PRACTICE EXAM 2 269.

Question 13 Question 14

A worker sued his employer, claiming that A law student is applying to become a
he was permanently and totally disabled due member of the state bar. The bar application
to a back injury he suffered on the job. The questionnaire asks whether the applicant has
employer’s attorney strongly suspected, but had ever used any illegal drug in violation of state
no proof, that the worker continued his hobby law. When the law student was in high school,
of skydiving after the alleged back injury. In she occasionally smoked marijuana, which is
due course, the employer’s attorney met with a misdemeanor under state law. However, the
the worker’s lawyer for a settlement discussion. statute of limitations has run on these incidents,
The employer’s attorney told the worker’s lawyer and the law student believes that she could not
that they had movies of the worker jumping out validly be kept out of the state bar for those
of an airplane two weeks after his purported offenses. She therefore believes that the question
injury. The worker’s lawyer excused herself to is irrelevant and an invasion of her privacy in
make a telephone call to the worker. When she violation of the state constitution. She fears,
asked the worker whether he had been skydiving however, that challenging the question could
after the accident, he admitted that he had. With brand her as a troublemaker and delay her
the consent of their respective clients, the two admission to the bar.
lawyers then settled the case for $400.
Which of the following would be proper?
Is the employer’s attorney subject to disci-
pline? (A) Answer the question in the negative, with-
out saying more.
(A) No, because bluffing is an accepted tactic
in settlement negotiations between lawyers. (B) Answer the question in the negative, citing
the state constitution’s privacy provision.
(B) No, because the employer’s attorney’s bluff
successfully unmasked a fraudulent claim. (C) Decline to answer the question, citing the
state constitution’s privacy provision.
(C) Yes, because it was improper to pay $400
to settle a fraudulent claim. (D) Decline to answer the question, citing the
federal constitutional privilege against self-
(D) Yes, because the employer’s attorney lied incrimination.
about having movies.

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270. PRACTICE EXAM 2

Question 15 (B) No, because one partner named Alpha left

the firm to enter public service.
A judge presides over a state trial court. Every
six years, trial judges in the state must stand as (C) Yes, unless the firm name would be
candidates in a partisan public election to deter- misleading.
mine whether they will retain their positions.
The judge will be a retention candidate in the (D) Yes, even if the firm name will mislead
election to be held nine months from now. In that some prospective clients.
same election, the judge’s husband, an attorney,
will be a candidate for lieutenant governor of the Question 17
state.
For three years, an attorney was a partner
The state allows judicial candidates to form in a law firm. During that period, the attorney
campaign committees up to a year before the represented a client, Alpha, in obtaining a
election. business loan from a bank. Alpha disclosed to
the attorney a great deal of confidential informa-
Which of the following may the judge do? tion about his business and his personal assets.
No other attorney in the law firm gained access
(A) Establish a campaign committee that will to that confidential information. Recently, the
solicit reasonable contributions for the attorney died. Shortly thereafter, Beta asked the
judge’s campaign. senior partner of the law firm to represent him
in a civil suit for serious personal injuries Beta
(B) Publicly endorse her husband as a candidate suffered when he was run over by a delivery
for lieutenant governor. truck driven by one of Alpha’s employees.

(C) Attend political gatherings in the company Would it be proper for the senior partner to
of her husband, and speak on behalf of both represent Beta?
herself and him.
(A) Yes, because the information obtained by
(D) Personally solicit contributions to her own the deceased attorney about Alpha’s as-
campaign. sets has no effect on liability in a personal
injury suit.
Question 16
(B) Yes, because neither the senior partner nor
Continuously since 1910, the law firm of any other attorney in the law firm gained
Alpha & Beta has practiced under that name. access to Alpha’s confidential information.
The founders of the firm are long dead. No
partner named Beta now practices with the firm. (C) No, because the conflict created by the
Two partners named Alpha were practicing with deceased attorney’s work for Alpha is
the firm, but one recently left because she was imputed to the senior partner.
appointed to the state supreme court.
(D) No, because the senior partner did not
May the firm continue to use the name Alpha obtain Alpha’s informed consent, confirmed
& Beta? in writing.

(A) No, because no partner named Beta now

practices with the firm.

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 PRACTICE EXAM 2 271.

Question 18 Question 19

A young associate was assisting a senior Alpha Corporation (“Alpha”) is incorporated

partner in writing the reply brief in an appeal in State A and its principal place of business is
for one of the partner’s clients. In doing the legal located there. It manufactures and sells clothing
research, the associate discovered a recent case under the trademark Alpha ® and licenses its
from the controlling jurisdiction that had not trademark to garment makers in other states.
been cited in the adversary’s brief. In the associ- Beta Clothing Co. (“Beta”) is incorporated in
ate’s opinion, the case was directly opposed to State B and has its sole place of business there.
the position of the partner’s client. The associate Beta hired an attorney licensed to practice only
asked the partner about citing it in the reply in State B to accompany Beta’s chief buyer
brief, but the partner explained that, in his view, on a trip to State A to negotiate a license to
the case was not directly on point and did not use Alpha’s trademark. Beta’s attorney will be
have to be cited. The associate and the partner negotiating with Alpha’s lawyer, who is licensed
argued back and forth at some length and finally to practice only in State A. Neither lawyer is
decided to submit the question to one of the licensed to practice before the United States
other senior partners in the firm for a fresh view. Patent and Trademark Office.
That partner sided with the other partner, and
the reply brief was filed without mentioning the If Beta’s attorney travels to State A to
case. negotiate the contract, is she subject to disci-
pline?
May the associate write a short letter to
the appellate court and the adversary lawyer, (A) No, because admission to practice in State
explaining his position and enclosing a copy of A was not necessary to negotiate the trade-
the case? mark license there.

(A) Yes, because the associate had a duty to (B) No, because Alpha’s lawyer is licensed to
call the case to the court’s attention. practice in State A.

(B) Yes, because the associate must not allow (C) Yes, because the attorney was not admitted
another person to interfere with his profes- to practice in State A.
sional judgment.
(D) Yes, because the attorney was not admitted
(C) No, because the associate must not commu- to practice before the United States Patent
nicate with a court ex parte about the merits and Trademark Office.
of a pending case.

(D) No, because the associate should abide by

the partner’s resolution of the matter.

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272. PRACTICE EXAM 2

Question 20 Question 21

An attorney recently opened his solo law A federal prosecutor is stationed in State A
practice in a small town. His practice is fairly and is gathering evidence to support federal
evenly divided between civil litigation and racketeering charges against a swindler. The
criminal defense. The Superior Court has just prosecutor believes in good faith that a wealthy
appointed the attorney to represent two defen- banker in State B has personal knowledge about
dants, who will be tried jointly for their alleged three federal felonies committed by the swindler,
kidnapping and brutal murder of nine local but the banker will not disclose what he knows.
schoolchildren. The prosecutor discovers from a secret infor-
mant that the banker illegally drained off $4.7
Which of the following is not a valid reason million from a failing State B bank—a state
for the attorney to decline the appointment? felony punishable by 10 years in prison. The
prosecutor therefore mails a letter from his office
(A) He believes that to represent the two de- to the banker, stating in relevant part: “I am
fendants will take so much time away from coming to State B next week. If you don’t give
his newly opened practice as to impose an me what I need concerning the swindler, I am
unreasonable financial burden on him. going to tell the State B prosecutors what you
did to that bank.”
(B) He believes that one defendant coerced the
other defendant into helping kidnap and kill Is the federal prosecutor subject to criminal
the children. liability because of his evidence-gathering
technique?
(C) He believes many of his potential clients
will be outraged if he represents the two (A) No, because the federal prosecutor had a
defendants. legal right to tell the State B prosecutors
about the banker, and he simply warned the
(D) He believes that confidential information banker what he intended to do if the banker
he received when representing one of the did not cooperate.
prosecution’s key witnesses will be useful
in impeaching that witness’s credibility. (B) No, because the federal prosecutor was
acting in good faith, believing that the
banker had relevant, unprivileged informa-
tion that was material to an ongoing federal
criminal investigation.

(C) Yes, because the federal prosecutor made

an interstate threat to accuse the banker of a
crime for the purpose of extracting valuable
information that he could use against the
swindler.

(D) Yes, because the federal prosecutor acted

under color of law to deprive the banker of
his federally protected civil rights.

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 PRACTICE EXAM 2 273.

Question 22 Question 23

An attorney is the head of the in-house law An attorney is a partner in a four-partner law
department of a children’s clothing company, firm. A client entrusted $40,000 to the attorney,
which has its principal place of business within instructing the attorney to hold it in safekeeping
the state. Under state law, it is a felony to for a few days and then to use it as the down
manufacture or sell children’s sleepwear that is payment on a piece of lakefront property. The
not fire retardant. The president of the company attorney promptly deposited the money in his
informed the attorney in confidence that the law firm’s law office account, a special bank
company is stuck with a whole warehouse full of account that the firm uses to pay the office rent,
children’s pajama fabric that does not meet the pay staff salaries, advance litigation expenses on
state’s fire standards, and that to avoid finan- behalf of clients, and the like. A few days later,
cial disaster, the company will use the fabric to when it was time to make the down payment, the
make children’s sleepwear and take its chances attorney discovered that one of his law partners
on legal liability. The attorney was unable to had made two large withdrawals from the law
convince the president to change his mind; office account, reducing the account balance
she then raised the issue with the company’s far below the $40,000 needed for the client’s
board of directors, which ratified the president’s down payment. The client’s attorney was unable
decision. to come up with other money to make up the
difference, and the client thus lost the chance to
Will the attorney be subject to discipline if she buy the lakefront property.
resigns as house counsel and reports the matter
to the appropriate state law enforcement authori- Is the attorney subject to civil liability to the
ties? client for mishandling the money?

(A) Yes, because the attorney is required to (A) No, because it was the attorney’s law
preserve the corporation’s confidential partner, not the attorney, who made the two
information even after she resigns. large withdrawals that made it impossible
to come up with the down payment.
(B) Yes, because there is no adequate reason for
permissive withdrawal on these facts. (B) No, because the legal ethics rule governing
safekeeping of clients’ funds is for profes-
(C) No, because the attorney is entitled to sional disciplinary purposes only; it is not
reveal this type of confidential information. intended as a standard for civil liability
purposes.
(D) No, because the attorney’s duty to preserve
confidential information ceases with her (C) Yes, because the attorney mishandled the
resignation as house counsel. money and is therefore civilly liable to the
client for breach of his fiduciary duty.

(D) Yes, because a lawyer is strictly liable to a

client for harm incident to the disappear-
ance of money that the client has entrusted
to the lawyer.

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274. PRACTICE EXAM 2

Question 24 (C) Yes, because the law firm owes continuing

duties of loyalty and confidentiality to its
A law firm represented an oil company in a former client, the oil company.
merger transaction in which the oil company
acquired all of the assets of a smaller petroleum (D) Yes, even though the merger matter and the
company in exchange for a specified amount of discrimination case are unrelated and even
capital stock of the oil company. The law firm’s though the law firm did not gain confiden-
work for the oil company was limited to the tial information from the oil company that
antitrust and securities law issues raised by the would be material in the discrimination
merger, and the firm lawyers who worked on the case.
matter did not become privy to any confiden-
tial information concerning the routine opera- Question 25
tions of the oil company’s business. The merger
work was completed two years ago, and the law A lawyer in a partnership died, leaving his
firm has not subsequently represented the oil daughter, a doctor, as his sole heir. Under the
company in any other matter. partnership agreement, the firm plans to make
the following payments to the deceased lawyer’s
Recently, the law firm took in a new partner daughter: $100,000, which represents the
who had previously practiced as a solo practi- decedent’s share of the firm’s assets, as measured
tioner. One of the cases that the new partner by his capital contribution; $45,000, which
brought the firm from his solo practice was an represents the decedent’s share of fees that had
employment discrimination case in which the been earned but not collected from clients at his
new partner’s client claims that the oil company death; and a $125,000 death benefit, representing
fired him solely because of his age. When the a percentage of the decedent’s earnings the year
new partner joined the law firm as a partner, the prior to his death, and payable in 12 monthly
oil company promptly made a motion in the trial installments.
court to disqualify the new partner and the law
firm as counsel for the plaintiff due to the law Under the Model Rules, which of the
firm’s earlier representation of the oil company following represents the most that the firm may
in the merger matter. properly pay to the decedent’s daughter?

(A) $100,000 for the decedent’s share of the

Are the new partner and the law firm subject
firm’s assets.
to disqualification?
(B) $145,000 for the decedent’s share of the
(A) No, because the merger matter and the firm’s assets and his share of uncollected
discrimination case are unrelated matters fees.
and because the law firm did not gain con-
fidential information from the oil company (C) $170,000, which represents the death
that would be material in the discrimination benefit and the decedent’s share of uncol-
case. lected fees.
(B) No, because whatever material confiden- (D) $270,000, which includes the decedent’s
tial information the oil company might share of the firm’s assets, his share of
have picked up in the merger matter is not uncollected fees, and the death benefit.
imputed to the new partner.

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 PRACTICE EXAM 2 275.

Question 26 Question 27

A concerned environmentalist hired an An attorney is admitted to practice only in

attorney to obtain preliminary and permanent State A, where he specializes in securities and
injunctions against a highway construction real estate finance law. In that role, the attorney
project that would require draining and filling advised his client that the law of State B did not
certain wetlands inhabited by migratory water- require the client to include information about
fowl. The attorney is the nation’s leading expert certain mineral rights in a disclosure statement
in wetland preservation law, and he charges that the client had to file in State B in order to
$400 per hour for his services. The environ- sell some real estate limited partnership inter-
mentalist agreed to pay him at that rate. She ests to State B citizens. Acting on the attorney’s
gave him a $40,000 advance on attorneys’ fees advice, the client did not disclose the informa-
and a $5,000 advance to cover future litiga- tion and did sell partnership interests to State B
tion expenses. The attorney deposited the entire citizens.
$45,000 in his client trust account.
Later, the attorney became a full-time trial
The attorney then spent 80 hours preparing court judge in State A. Later still, State B
and filing a complaint and preparing and arguing brought a criminal action against the client for
a motion for a preliminary injunction. He paid failing to disclose the mineral rights information
a court filing fee of $50, plus $1,950 in witness in his State B disclosure statement. One of the
fees to wetlands experts who testified at the client’s defenses is that he lacked the necessary
hearing on the preliminary injunction motion. criminal intent because he was acting in good
The judge denied the preliminary injunction faith based on the advice of his counsel, the
motion. The attorney sent the environmen- attorney who is now a judge. The client needs
talist a bill for $32,000 in attorneys’ fees and the judge’s testimony to prove that the judge
$2,000 in litigation expenses, and he told her did indeed advise him that he was not required
he would deduct those sums from the advances to disclose the mineral rights information. The
she had given him unless he heard from her judge, in State A, is beyond the subpoena power
to the contrary within 15 days. In light of the of the State B court.
loss of the preliminary injunction motion, the
environmentalist was outraged at the size of May the judge voluntarily testify on behalf of
the attorney’s fee; she immediately fired him the client?
and demanded the prompt refund of her entire
$45,000. (A) No, because judges are disqualified from
serving as witnesses in criminal cases.
Which of the following amounts must the
attorney promptly refund to his former client, the (B) No, because he is not admitted to practice
environmentalist? in State B, and his testimony about State B
law would be inadmissible.
(A) $0
(C) Yes, because a judge may testify as a
(B) $11,000 witness, except in his own court or one
under its appellate jurisdiction.
(C) $13,000
(D) Yes, because his testimony would concern
(D) $43,000 the giving of the advice, not his client’s
character.

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276. PRACTICE EXAM 2

Question 28 Question 29

A client sought the advice of an attorney on a When an attorney was an associate at a law
difficult and sensitive family problem. The client firm, she did the legal work for one of the firm’s
suspected that her husband had been molesting clients on a land sale transaction that earned the
the client’s 12-year-old daughter by a prior client millions of dollars. In gratitude, the client
marriage. The client asked the attorney what she asked the attorney whether she had any unful-
should do. The attorney advised the client that filled wishes. The attorney told the client that she
all three members of the family should consult wished she had enough money to start her own
a licensed family counselor who specializes in solo law practice. The client then told her that
precisely this sort of problem. Fearing that if the he would lend her $100,000 to set up her new
client were aware of the law she would not seek practice. In return, she would thereafter do all of
counseling, the attorney purposely failed to tell his legal work at a 5% discount from her normal
the client that a new state statute requires family hourly fee, and she would pay off the $100,000
counselors to report to the district attorney all loan by monthly payments equal to 10% of her
instances of suspected child abuse. net income for the prior month. The attorney
was delighted. She drafted a complete, detailed
The client and her family consulted the family agreement between herself and the client, and
counselor, and the family counselor reported she advised the client in writing to obtain outside
the matter to the district attorney, as she was legal advice before signing the agreement. The
required to do by law. The district attorney client obtained the outside advice and signed
commenced criminal proceedings against the the agreement, and the attorney set up her solo
client’s husband, much against the wishes of practice accordingly.
both the client and her daughter.
Is the attorney subject to discipline?
Were the attorney’s actions proper?
(A) No, unless she allows the client to interfere
(A) Yes, because the attorney feared that the with her professional judgment in handling
client would not seek counseling if she work for other clients.
knew about the statute.
(B) No, unless the attorney fails to give the law
(B) Yes, because it is the policy of the state that firm timely notice of the transaction.
all instances of child abuse be reported to
the appropriate authorities. (C) Yes, unless the law firm consented to the
loss of the client as a firm client.
(C) No, because a lawyer should fully advise a
client of relevant information. (D) Yes, unless the client is a lawyer.

(D) No, because as an officer of the court, the

attorney had a duty to protect the minor.

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 PRACTICE EXAM 2 277.

Question 30 Question 31

An attorney represented a woman in a court An attorney represents a defendant in a drug

proceeding to raise the alimony and child smuggling case. The defendant is in pretrial
support payments set in the woman’s divorce custody in a distant city and cannot be reached
decree. The woman’s ex-husband refused to by telephone. One key issue in the defendant’s
get a lawyer in the matter. The evening before case is on the cutting edge of search and seizure
the court hearing, the ex-husband telephoned law, and the attorney believes that he needs
the attorney at home and asked the attorney to help to deal with the issue competently. The
explain the legal standard the judge would apply attorney’s former law professor is a nationally
to his wife’s request for increased payments. The known expert on search and seizure law, but is
attorney responded that she was not his lawyer, not licensed to practice law in that state. The
and could not give him legal advice. She urged attorney calls his former professor to ask for
him to get a lawyer. help and also asks that the professor keep their
conversation confidential. To frame the issue
The ex-husband said he did not want a lawyer, accurately, the attorney tells the law professor
and then asked the attorney whether his wife some information that the defendant revealed to
and the children really needed more money to the attorney in confidence. The attorney does not
live on. The attorney responded that she had no tell the professor the name of his client.
personal interest to serve here—that she was
simply trying to do what was best for everyone Is the attorney subject to discipline for
involved, and that he should pay the extra money disclosing the defendant’s confidential informa-
because they did need it to live on. tion to the professor?

The ex-husband thanked the attorney and (A) Yes, because the professor was not licensed
hung up. to practice in that jurisdiction.

Was the attorney’s handling of the matter (B) Yes, because the defendant did not specifi-
proper? cally authorize the attorney to make the
disclosure.
(A) No, because as the wife’s lawyer, the attor-
ney should not have communicated directly (C) No, because the disclosure was necessary to
with the ex-husband at all. effectively carry out the representation.

(B) No, because the attorney pretended to be (D) No, because the attorney did not reveal his
disinterested and advised the ex-husband to client’s name.
pay the extra money.

(C) Yes, because the attorney advised the

ex-husband that she was not his lawyer,
that the ex-husband should retain one, and
that the attorney could not give him legal
advice.

(D) Yes, because the attorney only stated her

opinion and did not purport to give the
ex-husband advice.

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278. PRACTICE EXAM 2

Question 32 Question 33

For many years, a tax attorney has handled A public defender was assigned to represent a
all of the tax work for his client, a sculptor. One defendant at the defendant’s preliminary hearing
evening, the sculptor invited the attorney to his on a charge of kidnapping for ransom. Against
studio to discuss some tax returns that had to be the public defender’s advice, the defendant
filed the next day. In the studio, the attorney saw testified on his own behalf at the preliminary
a small sculpture that would be perfect for his hearing. The defendant was bound over for trial.
office. At the close of their tax discussion, the At that point, the defendant’s brother provided
attorney offered to buy the sculpture for $10,000, money to hire a private lawyer to represent
its approximate fair market value. The sculptor the defendant, and the public defender was
told the attorney that it was not for sale. In due discharged. The defendant testified on his own
course, the attorney sent the sculptor a bill for behalf at the trial, and the matter concluded after
a $750 fee for the tax work. A few days later, the jury acquitted him. Later, in connection with
the small sculpture was delivered to the attor- his work on another matter, the public defender
ney’s office with a note from the sculptor, saying read the transcript of the defendant’s trial. Based
that he hoped the sculpture would satisfy the on information the public defender learned while
recent bill, and he wanted the attorney to have representing the defendant, the public defender
the sculpture as a token of his gratitude for the concluded that the defendant had committed
excellent tax advice. perjury, both at the preliminary hearing and at
the trial. However, the public defender does not
Would the attorney be subject to discipline for believe that the defendant poses a danger to the
accepting the small sculpture from the sculptor? community.

(A) Yes, because the gift is of significant mon- May the public defender reveal the defendant’s
etary value. perjury?

(B) Yes, because the value of the sculpture is (A) Yes, the public defender may reveal the
far out of proportion to the $750 worth of perjury committed at the defendant’s pre-
work the attorney did for the sculptor. liminary hearing.

(C) No, because the attorney did not solicit the (B) Yes, the public defender may reveal both
gift. instances of perjury.

(D) No, because the $10,000 is only an approxi- (C) No, because the public defender does not
mation of market value. believe that the defendant poses a danger to
the community.

(D) No, because disclosure would violate the

public defender’s duty of confidentiality.

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 PRACTICE EXAM 2 279.

Question 34 Question 35

A bank operates a professional referral hotline An inventor asked a patent attorney to

for its depositors. Any bank depositor who needs represent him in obtaining a patent on a new
to find a physician, lawyer, accountant, dentist, computer technique for predicting the growth
or the like can telephone the hotline and obtain a patterns of tumors in the human body. The
free referral from lists of professionals compiled attorney informed the inventor that he had
by the bank. The lists are limited to profes- never worked on that kind of patent application
sionals who maintain an average balance of at before, and that he would have to do extensive
least $10,000 in an account at the bank, but the background research on the patentability of
professional does not pay a fee to the bank for computer techniques. The attorney will be able
receiving a particular referral. An attorney keeps to use the knowledge that he gains through
$10,000 on deposit with the bank for the express the research to serve other clients who wish to
purpose of being included on its lawyer referral obtain patents for all manner of other computer
list. techniques. The attorney offered to do the work
for the inventor for his standard hourly rate,
Is this arrangement proper? but the inventor proposed instead to assign the
attorney a 10% interest in the patent, if and when
(A) Yes, because the bank is functioning in the it was issued. The attorney agreed to do the work
role of a lawyer referral service. on that basis, and he and the inventor entered
into an appropriate written fee agreement.
(B) Yes, because neither the bank’s depositors
nor the professionals pay a fee for referrals. The attorney did the work; the patent was
ultimately issued and proved so valuable that the
(C) No, because the attorney is required to keep attorney was able to sell his 10% interest for $9.7
$10,000 on deposit to be included on the million (which was a reasonable fee for the work
list. performed).
(D) No, because this arrangement constitutes Is the attorney subject to discipline?
an association with a nonlawyer for the
practice of law. (A) Yes, because he acquired a proprietary in-
terest in the subject of the representation.

(B) Yes, because it is unreasonable to charge

one client for background research that will
be used to earn fees from other clients.

(C) No, because the inventor agreed to the fee

arrangement.

(D) No, because $9.7 million is not an unrea-

sonably high fee for the work that the
attorney did.

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280. PRACTICE EXAM 2

Question 36 Question 37

An attorney is admitted to practice only in An entertainment attorney has for many years
one state. One of her regular clients is a corpora- represented a country music star. One evening,
tion incorporated in the same state and has its the attorney and the music star were having a
principal place of business there. The president quiet business dinner together at a restaurant.
of the corporation went to another country to Another diner approached their table and in
negotiate a contract that would be governed by a loud voice began a vulgar and defamatory
foreign law. He telephoned the attorney to ask tirade against the music star. Everyone in the
whether a particular provision that he proposed restaurant heard the entire exchange. While all
would be lawful under foreign law, and he of the defamatory comments about the music
needed a quick answer because he had to resume star involved her personal life, about which the
negotiations in a few minutes. The attorney attorney had no real knowledge, he felt that they
had studied that country’s law in school, but could not possibly be true. At the music star’s
warned the president about the danger of relying request, the attorney commenced a slander suit
on off-the-cuff, unresearched legal advice. against the diner, after spending considerable
The president asked the attorney to do the best time reacquainting himself with slander law. In
she could. She then advised the president that his answer to the complaint, the diner admitted
the contract provision would be lawful. The making the allegedly slanderous statements, and
president signed a contract that included the as an affirmative defense, he alleged that the
questioned provision. As it turned out, the provi- statements were entirely truthful.
sion violated that country’s law and rendered the
contract unenforceable. When the case comes to trial, would it be
proper for the attorney to act as the music star’s
Is the attorney subject to discipline? trial counsel?

(A) No, because she did the best she could in (A) Yes, if the star gives informed consent,
an emergency situation. confirmed in writing.

(B) No, because a lawyer in the United States is (B) Yes, because the attorney is not a necessary
not expected to be competent in foreign law. witness.

(C) Yes, because she is not licensed to practice (C) No, because there is a possibility that the
in another country. attorney may be called as a witness.

(D) Yes, because she gave legal advice without (D) No, because he was not competent to take a
adequate research. slander case.

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 PRACTICE EXAM 2 281.

Question 38 Question 39

An attorney is on the in-house legal staff An attorney is licensed to practice law in State
of a large corporation. In that capacity, she A, but he is not engaged in the active practice of
works daily with the corporation’s top executive law. The attorney and his non-attorney partner
officers. She was assigned to defend the corpora- operate a temporary placement service for legal
tion in a lawsuit brought by a bank to collect a secretaries in State B. The attorney performs
$750,000 promissory note. The note was signed most of his work for the agency in State A and
on behalf of the corporation by its treasurer and is not licensed to practice law in State B. Neither
chief financial officer. The corporation’s defense does he hold himself out to be so licensed. An
is that the treasurer had no authority to sign the investigation by State B authorities results in the
note and that the bank knew it. The corpora- discovery that the attorney and his partner have
tion has advised the treasurer that it may seek intentionally filed improper state business tax
indemnification from him if it is held liable to returns.
the bank. The treasurer is not represented by
counsel. Shortly before the treasurer was to have Is the attorney subject to discipline in State A?
his deposition taken by the bank, he called the
attorney and asked her what to expect at the (A) Yes, because his actions in State B consti-
deposition and how to respond to the bank’s tute fraud.
questions.
(B) Yes, because he supervises the temporary
What should the attorney do? service business from State A.

(A) Advise the treasurer to hire a lawyer to (C) No, because the attorney is not licensed to
represent him at the deposition. practice law in State B.

(B) Tell the treasurer that she cannot discuss (D) No, because this situation does not involve
the matter with him unless he wants her to the practice of law.
represent him at the deposition.

(C) Advise the treasurer to tell the truth, to

answer fully all questions that are asked,
and to pause before each answer to give her
time to object to the bank’s questions.

(D) Advise the treasurer that his own interests

will be best served by answering truthfully
and demonstrating, if he can, that he had
authority to sign the note.

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282. PRACTICE EXAM 2

Question 40 Question 41

An attorney takes on a client who was hit by a In an effort to prevent gay persons from
car and was unable to work for 18 months. At the moving to their small town, a city council passed
client’s request, the attorney agreed to represent a zoning ordinance prohibiting the use of any
the client on a contingent fee basis. The client dwelling house as a residence for two or more
requested that the attorney provide him with adults of the same sex unless they are related
certain financial assistance during the pendency to each other. Violation of the ordinance is a
of the lawsuit. The attorney agrees to provide misdemeanor and carries a fine of $10,000. A
a $20,000 loan, in an agreement reviewed by landlord who owns several rental houses in the
independent counsel. The $20,000 would cover city and does not want his potential renter pool
$5,000 to support the client’s family, $5,000 for limited hired an attorney to advise him. The
the client’s medical treatment, $5,000 to retain attorney advised the landlord that the ordinance
an expert witness, and $5,000 for job training. could probably be overturned under the state
constitution, but that one would have to obtain
Which of the following was proper? legal standing to challenge the ordinance. The
attorney advised that one way to obtain legal
(A) The $5,000 to support the client’s family standing would be for a landlord to bring an
during the pendency of the suit. appropriate action for declaratory judgment,
and another way would be to simply violate the
(B) The $5,000 for the client’s medical treat- ordinance and raise the constitutional challenge
ment. as a defense to its enforcement.
(C) The $5,000 to pay the expert witness fee. After receiving this advice, the landlord
promptly rented one of his houses to two gay
(D) The $5,000 for job training. men. The landlord was cited for violation of the
ordinance. The landlord subsequently brought
an action to challenge the ordinance, and the
ordinance was held unconstitutional.

Was the attorney’s conduct proper?

(A) Yes, because violating the ordinance was

one of the few ways to gain legal standing
to challenge the constitutionality of the law.

(B) Yes, because the ordinance was ultimately

held unconstitutional.

(C) No, because the attorney counseled and

assisted the landlord in conduct the attorney
knew was illegal.

(D) No, because the attorney did not advise

against renting houses to unrelated adults of
the same sex.

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 PRACTICE EXAM 2 283.

Question 42 Question 43

An attorney has just opened an office in a A full-time trial judge, in addition to her
town where he does not know many people and judicial work, is the chief executive officer of
has few contacts. The attorney has just heard a corporation that is closely held by the judge
that a group of townspeople, including a former and her three brothers. The corporation owns
client, have been arrested and are being held at and operates a nursing home. Because of strong
the county jail for conducting a noisy demonstra- anti-gay religious beliefs on the part of residents,
tion outside the local high school to protest an the nursing home does not employ gay people.
impending strike by the teachers. The attorney The judge’s responsibilities for the corporation
strongly believes that the arrests were politi- do not interfere with her judicial duties.
cally motivated and that the demonstrators have
been deprived of their freedom of expression Is it proper for the judge to continue as chief
in violation of the First Amendment. He also executive officer of the corporation?
realizes that he might gain some favorable public
exposure if he were to help the arrestees. He (A) Yes, because a judge is only prohibited
therefore goes down to the county jail and offers from associating with an organization that
his legal services, free of charge, to any of the practices invidious discrimination on the
arrested demonstrators who want legal assis- basis of race, sex, religion, or national
tance. origin.

Are the attorney’s actions proper? (B) Yes, because the management of the
family-owned business does not take so
(A) Yes, because one of the arrested demon- much time that it interferes with the judge’s
strators was a former client. judicial duties.

(B) Yes, because the attorney was offering his (C) No, because a judge is not allowed to serve
services free of charge. as an officer, director, manager, general
partner, advisor, or employee of a business
(C) No, because to do so would involve entity.
in-person solicitation of legal business.
(D) No, because the nursing home practices
(D) No, because he was motivated at least in employment discrimination against gay
part by a desire to obtain publicity for his people.
law practice.

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284. PRACTICE EXAM 2

Question 44 Question 45

An attorney was appointed by the court to The mother of a full-time trial judge owns a
defend a client at his criminal trial for second small business that she wishes to sell. After she
degree murder. The attorney started interviewing and a prospective buyer come to terms on the
potential witnesses. When she interviewed the sale, the buyer has his lawyer draw up a sales
client’s landlord, the landlord said that on the contract and presents it to the judge’s mother,
night of the murder, the client came home very who asks her son, the judge, to review it for her.
late and was wearing a shirt covered with blood. The judge agrees, marks up the contract, and
The landlord died before trial without speaking returns it to his mother to present to the buyer’s
to state authorities. attorney. The judge’s mother did not tell the
buyer that her son reviewed the contract. The
Which of the following best states what the buyer has no known reason for being likely to
attorney should do with respect to the informa- appear in the judge’s court.
tion she has learned from the landlord?
Were the judge’s actions proper?
(A) The attorney should voluntarily reveal the
information to the prosecutor prior to trial (A) Yes, because the buyer is not likely to ap-
because the death of the landlord has made pear in the judge’s court in the future.
it impossible for the prosecutor to obtain
the information in any other way. (B) Yes, because he did not charge his mother
a fee.
(B) The attorney should urge the client to allow
her to reveal the information to the prose- (C) No, because a full-time judge is not
cutor, and if the client refuses, the attorney permitted to practice law.
should withdraw.
(D) No, because the judge’s identity was
(C) The attorney should keep the information not disclosed to the buyer or the buyer’s
in confidence unless the client authorizes attorney.
her to reveal it, even though the death of
the landlord has made it impossible for the
prosecutor to obtain the information in any
way other than from the attorney.

(D) The attorney should use her own best

judgment about how to treat the informa-
tion; it is neither privileged nor confidential
because it was not given to her by her client
or by an agent of her client.

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 PRACTICE EXAM 2 285.

Question 46 Question 47

A private adoption agency handles over 65% Attorneys Alpha and Beta have been law
of all private adoptions in the state in which the partners for six years. Beta was suspended
agency is located. The agency provides each from practice for one year based on an inten-
set of prospective adoptive parents with a list of tional tax law violation. Alpha took over Beta’s
lawyers whom the agency recommends and tells clients when his suspension went into effect.
them that it is in their best interest to obtain a Shortly before his suspension, Beta had negoti-
lawyer experienced in adoptions. The agency has ated a $30,000 personal injury settlement with
investigated each lawyer on its list to ensure the an insurance company on behalf of his client.
lawyer’s experience and reputation for honesty Two weeks after the settlement was reached, the
and ethical behavior. To further protect prospec- insurance company sent a $30,000 check to the
tive adoptive parents, the agency also requires law offices. By this time Beta’s suspension had
each lawyer on the list to agree not to withdraw gone into effect. Alpha placed the check in the
from any case where he has been retained by proper firm account and confirmed the amount
parents adopting through the agency. of the fee with Beta’s client. Alpha then promptly
forwarded a $20,000 check to the client and a
An attorney who has handled many private $10,000 check to Beta, the latter check repre-
adoptions and is highly regarded as an honest senting Beta’s one-third contingent fee.
and competent lawyer would like to be placed on
the agency’s list. Is Alpha subject to discipline?

Would it be proper for the attorney to sign the (A) Yes, because she should have held the
agreement and have himself included in the list? $10,000 in the client trust account until
Beta’s suspension had ended.
(A) Yes, because the list is a valuable service,
and people often do not know where to find (B) Yes, because a lawyer is prohibited from
a lawyer qualified to handle a matter such sharing legal fees with a nonlawyer.
as a private adoption.
(C) No, because Beta earned the fee prior to his
(B) Yes, because the attorney does not give suspension.
anything of value to the agency in exchange
for being placed on the list. (D) No, because the $10,000 belonged to
Alpha’s firm, and she could do anything she
(C) No, because the agency is acting as the wished with it, including sending it to Beta
attorney’s agent, and a lawyer may not use as a gift.
an agent to contact persons in a manner that
would be unethical solicitation if done by
the lawyer.

(D) No, because the agreement allows a third

party to exercise influence over the lawyer-
client relationship.

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286. PRACTICE EXAM 2

Question 48 Question 49

A judge is a loyal member of the alumni A defendant asked an attorney to defend him
association of the women’s college from which in a criminal case in which the defendant was
she was graduated. The 25th reunion of her charged with running a gambling operation.
graduating class is coming up, and she has been The defendant was known in the community as
asked to participate in some activities designed a wealthy person, but one who seldom kept his
to raise money for a gift from the class to the word and seldom paid his bills. The attorney
college scholarship fund. agreed to do the necessary work for a flat fee
of $5,000, which was reasonable in light of the
Which of the following activities would be difficulty of the case and the number of hours
improper for the judge to do? required. However, the attorney required that
the defendant pay $3,000 in advance. When the
(A) Make a substantial personal donation to the defendant protested that he did not have that
class gift fund. amount available in ready cash, the attorney
accepted the defendant’s full-length fur coat in
(B) Telephone other members of her graduating lieu of the cash advance. The fair market value
class and urge them to make a donation to of the coat is $3,000, and the attorney agreed to
the class gift fund. return it upon payment of his fee. Their agree-
ment was reduced to writing and signed by both
(C) Serve on the scholarship fund committee, parties.
which devises the various fund-raising
strategies. After the attorney had put in considerable
time in preparing the case for trial, the defendant
(D) Attend a fund-raising dinner for the class fired the attorney for no good reason and refused
gift. to pay him anything for the work already done.
Assuming the reasonable value of the attorney’s
services to date is $4,000, which of the following
statements is correct?

(A) The attorney is subject to discipline for

demanding that the defendant pay $3,000
in advance, before any legal services had
been rendered.

(B) The attorney is subject to discipline for

taking the coat in lieu of cash as an advance
on legal fees.

(C) The attorney is not subject to discipline

because the client had a reputation for not
paying his bills.

(D) The attorney is not subject to discipline

because all of his described conduct was
proper.

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 PRACTICE EXAM 2 287.

Question 50 Question 51

An attorney is interested in obtaining legal An attorney limits her practice to family law. A
business from a mineworkers’ union that has married couple came to her, hoping to save their
many members in the state in which the attorney marriage. After hearing their story, the attorney
practices. As a result of a recent mine fire and explained that she could act as a third-party
explosion in which several union members were neutral between them—not representing either
killed, the union has succeeded in persuading one of them, but facilitating their efforts to work
the appropriate state agency to bring an adminis- through their difficulties. The attorney explained
trative action against the company that owns the that neither of them would have the protections
mine for failing to install smoke detectors, which afforded by an ordinary attorney-client relation-
might have saved some lives in the disaster. ship, such as the attorney-client privilege, and
both said that they understood. The attorney held
Although the attorney is in no way involved in a series of meetings with the couple (sometimes
the case, he sees this as an opportunity to obtain with both, and other times with just one). The
future business from the union by showing the attorney began each meeting with a reminder
union that he is strongly on its side in the mine that, in the event of later litigation between the
disaster case. The attorney telephones a popular husband and wife, the attorney-client privilege
call-in radio show, and says that he is shocked would not protect what was said at the meeting.
and appalled at the callousness of the mining At one of the attorney’s individual meetings
company that caused the recent disaster in with the husband, he disclosed that he occasion-
which so many miners were killed. He further ally used drugs and sometimes used the family’s
opines that the mining company was willful and savings to purchase them. Ultimately, the husband
wanton in its failure to install smoke detectors, and wife were unable to resolve their differences,
and expresses hope that the company will not be and the wife sued the husband for a divorce and
allowed to escape the consequences of its despi- for custody of their three children. At the custody
cable conduct. hearing, the wife’s lawyer called the attorney to
the witness stand and asked what the husband
Without the attorney’s knowledge or consent, told her about his drug use. The attorney refused
his statement was later printed in several to answer, citing the attorney-client privilege.
newspapers in the state.
Is the attorney subject to discipline for his Which of the following is correct?
conduct?
(A) The privilege claim should be overruled; if
(A) Yes, because he was substantially moti- the attorney refuses to answer, she would
vated by his desire to attract fee-paying be subject to litigation sanction.
business.
(B) The privilege claim should be sustained; if
(B) Yes, because lawyers must not make public the attorney reveals what the husband said,
comments concerning pending litigation. she would be subject to discipline.

(C) No, because he did not make any false or (C) The attorney is subject to discipline for
misleading claims about himself or his attempting to serve as a third-party neutral
services. in a family law matter.
(D) No, because the statement was printed in (D) The attorney is subject to civil liability for
the newspapers without his knowledge or attempting to serve as a third-party neutral
consent. in a family law matter.

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288. PRACTICE EXAM 2

Question 52 Question 53

A technology company makes computer The state bar certifies specialists in nine fields
chips. It is incorporated in State A and it has a of law, one of which is tax law. An attorney has
chip manufacturing plant in State B. Recently, not yet earned her certificate of specialization in
the chip manufacturing plant has been afflicted tax law, but she is working toward that goal. The
with a rash of employment discrimination attorney’s ad states that she is a specialist in tax
claims. The company’s general counsel instructs law, and that tax law is a field in which the state
one of the company’s attorneys, who is admitted bar grants certificates of specialization.
to practice only in State A, to move temporarily
to State B, settle all existing meritorious claims, The attorney limits her practice to tax matters;
prepare all nonmeritorious claims for trial, and she refers all other kinds of legal matters to a
train the managers of the State B plant to comply solo practitioner in general practice. The solo
with federal and state employment discrimina- practitioner, in turn, refers all tax matters to the
tion laws. The general counsel knows that the attorney. Without exception, the solo practitioner
attorney is not admitted to practice in State B. and the attorney have followed that pattern
State B requires out-of-state lawyers to seek pro of referrals for five or six years; they have no
hac vice admission before undertaking pretrial formal reciprocal referral agreement, but each
preparation. invariably follows the pattern, expecting the
other to reciprocate.
May the attorney do as the general counsel
has instructed? Which of the following most correctly
describes the attorney’s situation?
(A) Yes, because the attorney’s right to practice
temporarily in State B is a debatable issue (A) The attorney is subject to discipline for
of legal ethics, and it is appropriate for her ad, but not for maintaining the referral
such an issue to be decided by a lawyer’s relationship with the solo practitioner.
supervisor.
(B) The attorney’s ad is proper, and so is her
(B) Yes, but because State B requires out-of- referral relationship with the solo practi-
state lawyers to be admitted pro hac vice in tioner.
order to engage in pretrial preparations, the
attorney must seek such admission. (C) The attorney is subject to discipline for
her ad, and her referral relationship with
(C) No, because the attorney must take and the solo practitioner is improper because it
pass State B’s bar exam. would need to be nonexclusive, and the two
lawyers would need to disclose it to referred
(D) No, because the attorney must associate a clients.
State B lawyer who will actively participate
with the attorney in settling the meritorious (D) The attorney’s ad is proper, but she is
claims and preparing the nonmeritorious subject to discipline for maintaining the
claims for trial. referral relationship with the solo practi-
tioner.

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 PRACTICE EXAM 2 289.

Question 54 (A) The attorney is subject to discipline for

personally soliciting money and publicly
An attorney is one of only nine lawyers who stated support from the eight lawyers. The
practice probate law in a particular county. In five lawyers who contributed money will
that county, all probate matters go before a be subject to discipline if the attorney wins
single judge—the probate judge. The probate and if they accept appointments from him.
judge’s duties include appointing counsel for
the administrators of intestate estates. Serving (B) The attorney’s conduct was proper because
as an administrator’s counsel can be very lucra- he was a candidate for a judicial office in
tive. The incumbent probate judge recently a contested election. All eight lawyers,
retired. Her custom was to appoint out-of-county however, are subject to discipline because a
lawyers to serve as administrators’ counsel, practicing lawyer must not contribute either
believing that such lawyers are less subject to money or time to the political campaign of
local political and social pressures than county a judge before whom the lawyer expects to
lawyers. The probate judgeship will be filled in appear.
six months in a partisan, contested election, and
the attorney is one of the candidates. (C) The attorney is subject to discipline for
promising to appoint only local lawyers
The attorney met jointly with the county’s as counsel for administrators, in the hope
eight other probate lawyers and said he was of securing the publicly stated support of
seeking the probate judgeship, and would the eight lawyers. The conduct of all eight
be making some important changes, such as lawyers, however, was proper because
appointing only local lawyers as counsel for lawyers are permitted to support or oppose
administrators of intestate estates. He also said candidates in contested elections for judge-
that if they’d like to contribute money or time, to ships.
please get in touch with his campaign committee
via his website. Five of the eight lawyers sent (D) The attorney’s conduct was proper because
generous monetary donations to the attorney’s he was a lawyer-candidate, not a judge, at
campaign committee for the self-confessed the time he met with the eight lawyers. The
purpose of securing legal appointments if the conduct of the five lawyers who contrib-
attorney wins. The other three lawyers volun- uted money was proper because a person’s
teered generous amounts of their time in the motive for making a political contribution
attorney’s campaign, but their motives for doing is a private matter that is protected by the
so were unexpressed and unclear. First and Fourteenth Amendments.

Which of the following is correct?

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290. PRACTICE EXAM 2

Question 55 (A) The judges of the superior court are sub-

ject to discipline for permitting the hotline
An attorney volunteers her legal services to operate under their auspices without
one night each week at a county legal advice making a conflict-of-interest check before
hotline. The hotline is run under the auspices dispensing legal advice to a new client.
of the superior court, and it supplies free legal
advice by telephone to callers who could not (B) Both lawyers and the judges of the superior
otherwise obtain legal services. Every caller court all acted properly because the hotline
assents to a “Statement of Understanding” at cannot do the kind of conflict-of-interest
the outset of the call, informing the caller of checking that a private law firm would do.
the limited nature of the legal services that the
hotline provides. Eighty-five lawyers volunteer (C) The first attorney acted properly in advising
their services as the attorney does. They come the mother, but the second lawyer is subject
to the hotline office at various times on various to discipline for giving legal advice to the
days, and the volunteers hardly ever see or talk father on the same subject.
with each other. The nature of the hotline’s
work makes it impossible for the lawyers to (D) Neither the mother nor the father was a
conduct the kind of conflict-of-interest checks “client” of the respective lawyers who
that an ordinary law firm would conduct before advised them. Therefore, there was no
taking on a new client. One Tuesday night, the conflict of interest, and both lawyers acted
attorney counseled a distraught mother about properly.
her husband’s physical and mental abuse of
their school-age children. The attorney told the
mother how to seek help from Child Protec-
tive Services. On the following Friday evening,
a different hotline lawyer volunteer counseled
the mother’s husband about how to prevent
Child Protective Services from scooping up
his children and putting them in a foster home.
Because the hotline does not do conflict-of-
interest checks, the lawyer who counseled
the husband had no way to know that the first
attorney had counseled the mother a few nights
before.

Which of the following is correct?

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 PRACTICE EXAM 2 291.

Question 56 (D) Yes, because the attorney does not keep her
sports agent work clearly distinct from her
An attorney practices sports law, primarily lawyer work, and therefore she must follow
representing professional women’s basketball the lawyer conflict of interest rules in both
players in contract negotiations and other kinds kinds of work.
of civil matters. The attorney also serves as a
sports agent for a number of clients, taking steps Question 57
to advance their careers in every way possible,
such as team placement, public relations, product A solo practitioner limits her law practice to
sponsorship, and the like. The attorney uses a two kinds of cases: medical malpractice and
single office for her law work and her sports products liability. When the solo practitioner
agent work, but she charges her clients separately turned 67, she began looking for someone to buy
for the two types of work. For her sports agent her law practice. Ultimately, she sold the medical
work, she charges a flat annual fee that she malpractice part of her practice to lawyer
negotiates with the client once a year. For her Alpha for $400,000, and she sold the products
law work, she charges the client by the hour at liability part of her practice to attorney Beta for
a reasonable hourly rate. The attorney is lawyer $250,000. The solo practitioner then retired.
and sports agent for two players on the local Within 30 days after the sales to Alpha and Beta,
basketball team, Alpha and Beta. Both women approximately 40% of the solo practitioner’s
are excellent players, and both are well-educated, former clients decided to collect their case files
well-spoken, photogenic, and popular with fans. and take their business to different lawyers.
A local bank approached the attorney, expressing
interest in signing up Alpha to serve as the Were the sale from the solo practitioner to
bank’s spokeswoman. The attorney responded Alpha and the sale from the solo practitioner to
that Alpha would fit the bank’s needs well, but Beta proper?
that Beta would be an equally good fit and would
do the work “for substantially less money.” In (A) Yes, even though the solo practitioner
due course, the attorney served as Beta’s lawyer sold pieces of her practice to two different
in negotiating an 18-month exclusive sponsorship buyers, and even though 40% of the solo
contract with the bank. practitioner’s clients left the buyers within
30 days.
Is the attorney subject to discipline?
(B) Yes, but the solo practitioner is subject to
(A) No, because when the attorney acts on be- civil liability to the two buyers for unjust
half of a client as sports agent, she need not enrichment because 40% of the solo practi-
follow the lawyer conflict of interest rules. tioner’s clients left the buyers within 30
days.
(B) No, because the attorney charged her clients
separately for her sports agent work and her (C) No, because the solo practitioner sold pieces
law work, and therefore she need not follow of her practice to two different buyers.
the legal ethics rules when doing sports
agent work. (D) No, because 60% of the solo practitioner’s
clients stayed with the buyers for more than
(C) Yes, because the attorney was in essence 30 days.
charging twice for the same work when she
attempted to serve as sports agent for Alpha
and Beta.

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292. PRACTICE EXAM 2

Question 58 of the Securities and Exchange Commission.

The general counsel of the corporation hires
A man walked into an attorney’s office and an outside antitrust attorney to investigate the
explained that he is a dealer of illegal drugs, that matter. The antitrust attorney and her associate
one of his sales associates has just been arrested, investigated the matter and discovered that some
and that he would like the attorney to defend of the sales associates had indeed entered into
the sales associate. The drug dealer offered to agreements that could make the corporation
leave a $10,000 retainer comprised of a shoebox civilly and criminally liable under the antitrust
of $100 bills. The attorney was uncertain about laws. The antitrust attorney reported these
getting involved with the drug dealer and findings and her antitrust advice in a confidential
especially about accepting a large sum in cash letter addressed jointly to the company’s chief
from the dealer. The attorney told the dealer that executive officer and the general counsel. The
he would think about his request and would let general counsel wrote back, asking the antitrust
him know later that day. When the drug dealer attorney to stand by to defend the company
left the office, the attorney telephoned his friend if needed. Months went by, and the antitrust
and mentor, a retired judge. The attorney told attorney heard nothing more. Her associate grew
the judge the entire story, including the dealer’s restless, and without telling the antitrust attorney,
name, and asked the judge whether it would be he told a friend in the Justice Department what
ethical to defend the sales associate and accept the company’s salespeople had done. The Justice
the dealer’s cash. Department began a price fixing investigation of
the company and its competitors.
Is the attorney subject to discipline for telling
the judge the whole story? Which of the following is correct?

(A) Yes, because the attorney-client privilege (A) The antitrust attorney is subject to disci-
forbids the attorney from revealing what pline for failing to report the company’s
the drug dealer told him in confidence. situation to the antitrust enforcement au-
thorities in the Justice Department, but her
(B) Yes, because the solo practitioner revealed associate’s conduct was proper.
the drug dealer’s name.
(B) The conduct of both the antitrust attorney
(C) No, because the attorney’s prospective and the associate was proper, and neither of
client was the accused sales associate, not them will be subject to civil liability if the
the drug dealer. company sues them for legal malpractice.
(D) No, because the ethical duty of confidenti- (C) The associate is subject to discipline for
ality has an exception that allows a lawyer tipping off the Justice Department, but the
to reveal confidential information to obtain antitrust attorney’s conduct was proper.
legal ethics advice.
(D) Neither the antitrust attorney nor the
Question 59
associate is subject to discipline, but both of
A family-owned chemical company receives them may be subject to civil liability if the
information that some of its sales associates company sues them for legal malpractice.
may have entered into price fixing agreements
in violation of federal antitrust laws. The shares
of the chemical company are not publicly traded
and the company is not subject to the jurisdiction

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 PRACTICE EXAM 2 293.

Question 60

An attorney represented a plaintiff in a

personal injury case. While on his way home
after the first day of the trial, the attorney
stopped for dinner at the pub down the street
from the courthouse. A juror walked in, sat at
the barstool next to the attorney, and compli-
mented the attorney on his opening statement.
In an effort to be polite and without any inten-
tion of influencing the juror, the attorney replied,
“Thanks. I did my best to explain the scope of
my client’s injuries—she’s had a really hard time
since the accident.” The attorney then excused
himself and moved to a table. The jury eventu-
ally returned a verdict in favor of the plaintiff.

Is the attorney subject to discipline?

(A) Yes, because the attorney spoke with the

juror outside of the official proceedings.

(B) Yes, because the jury returned a verdict for

the plaintiff.

(C) No, because the attorney did not intend to

influence the juror.

(D) No, because the juror initiated the conversa-

tion.

STOP
 PRACTICE EXAM 2 295.

ANSWER SHEET

1 A B C D 31 A B C D
2 A B C D 32 A B C D
3 A B C D 33 A B C D
4 A B C D 34 A B C D
5 A B C D 35 A B C D

6 A B C D 36 A B C D
7 A B C D 37 A B C D
8 A B C D 38 A B C D
9 A B C D 39 A B C D
10 A B C D 40 A B C D

11 A B C D 41 A B C D
12 A B C D 42 A B C D
13 A B C D 43 A B C D
14 A B C D 44 A B C D
15 A B C D 45 A B C D

16 A B C D 46 A B C D
17 A B C D 47 A B C D
18 A B C D 48 A B C D
19 A B C D 49 A B C D
20 A B C D 50 A B C D

21 A B C D 51 A B C D
22 A B C D 52 A B C D
23 A B C D 53 A B C D
24 A B C D 54 A B C D
25 A B C D 55 A B C D

26 A B C D 56 A B C D
27 A B C D 57 A B C D
28 A B C D 58 A B C D
29 A B C D 59 A B C D
30 A B C D 60 A B C D
 PRACTICE EXAM 2 297.

Answer to Question 1 issue is one example.) The stay of execution

should be regarded as personal, substan-
(D) The solo practitioner and the young attorney tial participation. (A) is wrong because it
are subject to discipline for entering into confuses the roles of judge and lawyer;
the partnership agreement because of the a judge is expected to be impartial, but a
restriction on the young attorney’s right to lawyer is expected to be a partisan. (C) is
practice. A lawyer must neither make nor wrong because one of the proper reasons
offer a partnership agreement that restricts for turning down a court appointment is
a lawyer’s right to practice after termination that it would require the lawyer to violate a
of the relationship, except for an agree- disciplinary rule. [ABA Model Rule 6.2(a)]
ment concerning benefits upon retirement. (D) is wrong because it elevates form over
[ABA Model Rule 5.6(a)] Under the agree- substance; the similarity of legal issues, not
ment here, if the young attorney leaves the the case caption, should be determinative
partnership within the first three years, he here.
must pay the solo practitioner 75% of the
fees he earns thereafter from municipal Answer to Question 3
bond work he does in the state. This provi-
sion unduly restricts the young attorney’s (B) The attorney is subject to discipline because
right to practice. (A) is wrong because it she did not consult the farmer about associ-
overlooks the improper restriction on the ating the specialist. A lawyer may split her
young attorney’s right to practice. (B) is fee with a lawyer outside her firm if the
wrong because it overlooks the restric- total fee is reasonable, the split is either in
tion on the young attorney. Furthermore, it proportion to the work done (or in some
implies that the sale of assets in exchange other proportion if the splitting lawyers
for the restriction on the solo practitioner is assume joint responsibility), and the client
necessary to restrict the solo practitioner’s agrees to the split in a writing that discloses
right to practice; it is not. (C) is wrong the share that each lawyer will receive.
because the restriction on the solo practitio- [ABA Model Rule 1.5(e)] Because the
ner’s right to practice is properly incident to attorney did not tell the farmer about the
the retirement benefits he will receive from arrangement, she is subject to discipline.
the young attorney. (A) is wrong because a lawyer may take on
a case she knows she is not competent to
Answer to Question 2 handle if she prepares as needed to become
competent, or if she associates a lawyer
(B) The justice may not represent the defen- who is competent to handle it. [Comment
dant in the habeas proceeding because, 1 to ABA Model Rule 1.1] (C) and (D)
while serving as a supreme court justice, are wrong because they ignore the need to
the retired justice granted the defendant a inform the farmer.
stay of execution. A lawyer must not repre-
sent a client in a “matter” in which the Answer to Question 4
lawyer earlier participated “personally and
substantially” as a judge. [ABA Model Rule (C) The attorney’s advice to the accountant
1.12(a)] The habeas corpus proceeding and was proper because the accountant acted as
the earlier appeal should be regarded as the client’s agent in rendering accounting
the same matter because the habeas corpus advice. A lawyer may request that someone
proceeding will doubtless raise many of the other than a client refrain from voluntarily
same issues that were decided on the earlier giving relevant information to another
appeal. (The effective assistance of counsel party if the person is a relative or agent
298. PRACTICE EXAM 2

of the client and the lawyer reasonably Thus, Alpha and Beta are deemed a firm,
believes that the person’s interests will and Beta is disqualified from accepting the
not be adversely affected by refraining employment because Alpha’s disqualifica-
from giving the information. [ABA Model tion is imputed to her. (A) is wrong because
Rule 3.4(f)] Here, the attorney reasonably a client must not be asked to consent if a
believed that refusing to talk informally disinterested lawyer would conclude that
with the plaintiff’s counsel would not the client should not agree to the represen-
harm the accountant, and the accountant tation. Representing both sides in litiga-
was the client’s agent in rendering the tion is such a circumstance. [ABA Model
accounting advice. (A) is wrong because Rule 1.7, comment 23] Moreover, ABA
it is the accountant’s agency, not privilege, Model Rule 1.7(b)(3) does not permit client
that affects the propriety of the attorney’s consent to solve a conflict of interest when
advice. The lack of an evidentiary privilege one client sues another client represented
does not give the plaintiff’s counsel a right by the lawyer in the same proceeding.
to talk to the accountant informally if the (B) is wrong because, as discussed above,
accountant chooses not to. (B) is wrong the rule of imputed disqualification does
because the attorney did not interfere with apply to Alpha and Beta even though they
the plaintiff’s access to evidence; if the are not partners. (D) is wrong because, as
plaintiff wants to know what the accountant discussed above, the key issue is whether
has to say, he can simply take the accoun- the lawyers here would be considered
tant’s deposition. (D) is wrong because it a firm. The mere fact that the lawyers
was not improper for the plaintiff’s counsel sometimes share fees does not make them a
to attempt to talk informally with a third- firm.
party witness such as the accountant.
Answer to Question 6
Answer to Question 5
(D) The attorney is not subject to discipline for
(C) Beta may not take the case even if Alpha (D) because she was not offering unsolic-
and Beta believe that they can effectively ited free legal advice, then accepting
represent their respective clients, and employment arising from it. [See ABA
even if all parties give informed consent, Model Rule 7.3] The client initiated the
confirmed in writing. The key issue is contact, asked for the advice, and was
whether Alpha and Beta are considered a in the midst of negotiating the attorney’s
“firm” for purposes of the imputed disqual- employment when the advice was given.
ification rule with respect to conflicts of On the other hand, a lawyer must not state
interest. Because lawyers in a firm are or imply that she has the ability to improp-
usually treated as a single unit for conflict erly influence a government official or
of interest purposes, different lawyers in that she can achieve results by means that
the same firm must not represent opposing violate the Rules of Professional Conduct
parties in a civil case. [ABA Model Rule or other law. [ABA Model Rule 8.4(e)]
1.10(a)] Relevant factors in determining Thus, the attorney is subject to discipline
whether lawyers who share office space are for (A), saying that she knows how to get
deemed a firm include whether they: hold a favorable ruling from the judge, which
themselves out to the public as a single unit, implies that she can influence the judge.
frequently consult and assist each other, Advising the client to make the campaign
refer cases to each other, work jointly on contribution can be viewed in two ways,
cases, and have access to each other’s files. both of which subject the attorney to
All of these factors are present in this case. discipline. If the $2,000 is viewed harshly
 PRACTICE EXAM 2 299.

as a bald bribe, then the attorney is subject him. [See Fed. R. Evid. 609(a)—mugging
to discipline for counseling a client to does not involve dishonesty or false state-
commit a crime. [ABA Model Rule 1.2(d)] ment, and a judge would probably exclude
If the $2,000 is viewed benignly as a felony mugging convictions because of the
campaign contribution, the attorney is high risk of prejudice] Note that there is
subject to discipline for assisting a judge an additional constraint on the prosecutor
to violate a judicial ethics rule. [ABA in a criminal case. A prosecutor must not
Model Rule 8.4(f)] The Code of Judicial make extrajudicial comments that have
Conduct prohibits the judge from person- a substantial likelihood of heightening
ally accepting campaign contributions. public condemnation of the accused. [ABA
Contributions must be given to a campaign Model Rule 3.8(f)] The district attorney’s
committee. [CJC Rule 4.1(A)(8)] Thus, statement also runs afoul of this rule by
(B) subjects the attorney to discipline. The revealing prior crimes that would heighten
attorney is subject to discipline for (C) public condemnation of the defendant. (A)
because the attorney apparently believes is wrong because even if the prior convic-
that the local lawyer running against the tions are a matter of public record, that does
judge is an “honest fellow,” yet her editorial not absolve the district attorney for making
implies that the local lawyer is a crook. A a statement she knew would substantially
lawyer is prohibited from making a state- prejudice the case. Furthermore, while
ment about a judicial candidate, either in a technical sense the defendant’s prior
knowing that the statement is false or with convictions in other states are matters of
reckless disregard as to its truth or falsity. public record (if one knew where to go and
[ABA Model Rule 8.2(a)] what to look for, one could dredge them out
of the court records of the other states), the
Answer to Question 7 prior convictions were doubtless not part of
the public record in the defendant’s present
(C) The district attorney is subject to discipline prosecution. (B) is wrong because it is too
because she should have known that the broad; lawyers do have First Amendment
statement was likely to prejudice the trial. rights to express themselves about pending
A lawyer who is connected with a case cases, but those rights are limited by the
must not make a public statement outside due process rights of litigants to fair court
the courtroom that the lawyer reason- proceedings. (D) is wrong because it is also
ably should know would have a substan- too broad; a prosecutor may make some
tial likelihood of materially prejudicing kinds of public comment about pending
the case. [ABA Model Rule 3.6(a)] The cases, but not comments that are likely to
district attorney’s comment to the reporter cause prejudice.
falls in that category because it revealed
very damaging material that had not been, Answer to Question 8
and probably would not be, admitted into
evidence. A defendant’s prior convictions (C) The attorney is not subject to discipline
generally are inadmissible as evidence of unless 30% of the book royalties is unrea-
his conduct on the occasion in question. sonably high for the contract negotiation
[See Fed. R. Evid. 404] Even if the defen- work. Here, the attorney has, in essence,
dant elected to waive his privilege against agreed to negotiate the publication contract
self-incrimination and testified on his in return for a contingent fee. Like all
own behalf, the prior convictions would other fees, a contingent fee is subject to
probably not be admissible to impeach the general requirement of reasonableness.
300. PRACTICE EXAM 2

[ABA Model Rule 1.5] (A) is wrong because to the estate in civil damages for his secre-
this is not the kind of literary rights contract tary’s dishonest act, but the question here
that is prohibited. A lawyer must not is professional discipline, not civil liability.
acquire literary or media rights to a story The attorney could be disciplined if he did
concerning the lawyer’s representation of a not take reasonable steps to train his secre-
client until after the legal matter is entirely tary properly [ABA Model Rule 5.3], but if
concluded. [ABA Model Rule 1.8(d)] Here, he took such steps, he should not be disci-
the client is the author, and the book is plined for her criminal act. (C) is wrong.
about her life in prison, not about her case The issue here is the attorney’s failure to
or her attorney’s representation of her. A safeguard the coins; the proximate cause
lawyer may represent a client in a transac- of the loss is beside the point. Technically,
tion concerning literary property in which a lawyer could be subject to discipline for
the lawyer’s fee consists of a share of the failure to safeguard the property even if
ownership of the property, provided that the no loss occurred. (D) is wrong. Placing the
arrangement complies with the general rules coins in an unlocked desk file and leaving
about attorneys’ fees and does not give the the office was not a reasonable way to
lawyer a proprietary interest in the subject safeguard them.
of litigation. [Comment 9 to ABA Model
Rule 1.8] (B) is wrong because a lawyer Answer to Question 10
may advance litigation expenses for a client,
even though he is aware that she probably (A) Alpha is subject to discipline for failing
cannot pay him back. ABA Model Rule to warn Beta not to take the case. If the
1.8(e)(2) permits the lawyer simply to pay paralegal were a lawyer, her conduct
the litigation expenses for an indigent client, would violate ABA Model Rule 7.3(b),
even without the pretense of calling it an which prohibits in-person solicitation.
advance. (D) is wrong because the literary The partners in a firm are responsible for
rights contract was a separate representation educating their nonlawyer employees about
from, and did not concern the story of, the ethics issues and making reasonable efforts
murder trial. to assure that those employees comply
with ethics rules. [ABA Model Rule 5.3(a)]
Answer to Question 9 Moreover, a partner is subject to discipline
if he learns about the violation of an ethics
(A) The probate attorney is subject to discipline rule by a nonlawyer employee “when its
because he did not put the coins in a safe consequences can be avoided or mitigated,”
place. When a lawyer comes into possession but the partner “fails to take reasonable
of property to be held on a client’s behalf, remedial action.” In this case, the conse-
the lawyer must identify it as belonging to quences of the paralegal’s solicitation could
the client and must put it in a safe place. have been avoided by warning Beta not to
[ABA Model Rule 1.15(a)] Although the take the pedestrian’s case. Because he failed
Rules do not define “safe,” common sense to warn Beta, Alpha is subject to disci-
suggests that allowing a valuable coin pline. (B) is wrong because it is too broad.
collection to be viewed by employees, A lawyer’s responsibility for a nonlawyer
placing it into an unlocked desk file, and employee’s ethics violation is limited to
then leaving the office is not safe. A lawyer situations in which the lawyer orders it,
should use the same level of care required ratifies it, or learns about it in time to
of professional fiduciaries. The probate remedy it and does not do so. [ABA Model
attorney’s actions fall well short of that. Rule 5.3(c)] (C) is wrong because even
(B) is wrong. The attorney may be liable though people are generally free to recom-
 PRACTICE EXAM 2 301.

mend a lawyer to someone else, that does matter while in government service that
not allow the paralegal to solicit business concerned the client’s claim against the
for the firm that employs her. [ABA Model chemical company. (D) is wrong because
Rule 8.4(a)] (D) is wrong because Alpha the information is not confidential and thus
and the other partners in the firm had a can be used against the chemical company.
duty to educate the paralegal about ethics Furthermore, even if the information
rules. [ABA Model Rule 5.3(a)] Further- were confidential, mere nonuse would not
more, even if the paralegal acted innocently, be sufficient; the attorney would not be
that does not excuse Alpha’s failure to warn permitted to represent the client.
Beta not to take the case.
Answer to Question 12
Answer to Question 11
(C) The attorney is subject to discipline because
(C) The attorney is not subject to discipline she did not advise the client to seek outside
for taking the case because the relevant counsel. A lawyer may not settle a legal
information he obtained while working malpractice claim or potential claim with
as a government attorney is not confiden- an unrepresented client or former client
tial. The general rule is that a government without first advising that person in writing
lawyer who receives confidential govern- to seek outside legal advice about the
ment information about a person must settlement and giving the person a reason-
not later represent a private client whose able chance to obtain such advice. [ABA
interests are adverse to that person, if the Model Rule 1.8(h)(2)] Although the client
information could be used to the material has apparently not made a formal claim of
disadvantage of that person. [ABA Model malpractice here, he has asserted that the
Rule 1.11(c)] The rule covers only “confi- attorney’s services were “defective,” and
dential” information, which means informa- that is regarded as sufficient to bring Rule
tion that the government is prohibited from 1.8(h)(2) into play. The settlement agree-
revealing or has a privilege not to reveal, ment in this question also gives the client an
and which is not otherwise available to the incentive not to report a lawyer’s miscon-
public. Here, because the information is duct to the bar. Some state bars have found
available under the Freedom of Informa- similar settlement agreements improper
tion Act, it is not confidential. In fact, any because they frustrated the bar’s efforts at
attorney representing the client could obtain self-regulation and could be prejudicial to
the information; thus, the attorney is free the administration of justice. [See Arizona
to use it. (A) is wrong because a lawyer is State Bar Op. 91-23 (1991)] (A) is wrong
not barred from ever working on a case because although lawyers are urged to settle
where he gained any relevant information fee disputes amicably [comment 9 to ABA
while working for the government. To bar Model Rule 1.5], this particular settlement
representation, the information must be agreement involves both a fee dispute and a
confidential. (B) is wrong because this type malpractice claim. (B) is wrong because the
of consent is required when the attorney dispute about the quality of the attorney’s
takes on a representation in private practice services is what causes the problem here, as
in a matter in which the lawyer partici- explained above. (D) is wrong because it is
pated personally and substantially while too broad. A lawyer may settle a malprac-
in government service. A “matter” is a set tice claim if the claimant is independently
of specific facts involving specific parties. represented or if the lawyer advises the
Here, the attorney was not involved in any claimant in writing that he should seek
302. PRACTICE EXAM 2

independent legal advice before entering self-incrimination applies to questions on

into the settlement. [ABA Model Rule bar applications (a debatable proposition), it
1.8(h)(2)] does not apply when criminal punishment
is barred by the statute of limitations. [See
Answer to Question 13 Hazard & Hodes, §62.6]

(D) The employer’s attorney is subject to disci- Answer to Question 15

pline because he lied about having movies.
When dealing on behalf of a client with a (A) A judge may establish a campaign
third person, a lawyer must not knowingly committee no earlier than an amount of
make a false statement of law or material time prior to the election set by the jurisdic-
fact. [ABA Model Rule 4.1(a)] The employ- tion. [CJC Rule 4.2(B)(1)] Because the state
er’s attorney knew that he had no movies; allows campaign committees to be formed
his statement to the worker’s lawyer was a up to one year before the election, and it is
bald lie. (A) is wrong because the employ- nine months before the election under the
er’s attorney’s statement was a knowing facts given, (A) is proper. (B) is improper;
misrepresentation of material fact, not the a judge may not publicly endorse a candi-
kind of puffery that is tolerated in settle- date for another public office. [CJC Rule
ment negotiations. [See comment 2 to ABA 4.1(A)(3)] (C) is improper; the judge may
Model Rule 4.1] (B) is wrong because the attend a political gathering in the company
ends do not justify the means. (C) is wrong of her husband, and she may speak on her
because the employer consented to the $400 own behalf, but she must not speak on his
settlement. Given the employer’s risk of behalf. [CJC Rules 4.1(A)(3), 4.2(B)] (D)
going to trial in a case where the plaintiff is is improper; a judge is prohibited from
claiming total and permanent disability due personally soliciting contributions for her
to a back injury, the small settlement was own campaign. [CJC Rule 4.1(A)(8)]
not unreasonable.
Answer to Question 16
Answer to Question 14
(C) The firm may continue to use the name
(C) While a bar applicant must cooperate Alpha & Beta if it is not misleading. A firm
in reasonable investigations by the state may practice under a trade name, provided
bar and make disclosures relevant to her that the trade name is not misleading.
fitness to practice, she may challenge the [Comment 5 to ABA Model Rule 7.1] (A) is
validity of a question on legally tenable wrong because a firm may continue using
grounds. [See ABA Model Rule 3.4(c)] the name of a deceased partner. [Id.] (B) is
That a question violates the state constitu- wrong because the person who left was not
tion would be a legally tenable argument. a name partner. Generally, when a name
Moreover, by declining to answer, the law partner enters public service and is not in
student has not made an untrue statement. private practice for a substantial period, the
(A) and (B) would not be proper because a firm must cease using that person’s name.
bar applicant must not make untrue state- [Comment 8 to ABA Model Rule 7.1] Here,
ments on a bar application. [ABA Model the Alpha surname refers to the deceased
Rule 8.1(a)] If the law student answers in founder and not the partner who was
the negative, she will have made an untrue appointed to the state supreme court. If,
statement. (D) would not be proper because however, the use of the Alpha name in the
the self-incrimination privilege is inappli- firm name would mislead potential clients
cable here. Even if the privilege against (e.g., by making them think they could gain
 PRACTICE EXAM 2 303.

an advantage in the state supreme court by accordance with a supervisor’s reason-

hiring that firm), then continued use of the able resolution of an arguable question
name would violate the ethics rules. [See of professional duty. [ABA Model
ABA Model Rule 7.1] (D) is wrong because Rule 5.2(b)] Here, it seems clear that
the rules on firm names are subject to the the question was arguable because the
more general provisions on misleading third attorney called in to determine the
communications. relevance of the case also felt it was not on
point. (A) is wrong because the associate
Answer to Question 17 only has a duty to call the case to the
court’s attention if the case is directly on
(B) It would be proper for the senior partner to point. That is a debatable question, and the
represent Beta because neither the partner associate’s supervisors have determined
nor any other lawyer in the firm gained the case is not directly on point. Thus,
access to Alpha’s confidential informa- the associate need not reveal the case.
tion. Even though Alpha’s bank loan is (B) is wrong because this is not the situa-
not substantially related to Beta’s personal tion intended to be addressed by the rule
injury suit, the confidential information against allowing a third party to influ-
that the deceased attorney got from Alpha ence the lawyer’s judgment, which usually
may well become important in Beta’s arises when a third party pays the lawyer’s
suit. Knowing the extent and nature of fees to represent another. Of course, a
Alpha’s assets could be of great value to subordinate lawyer should be influenced
counsel for Beta in advising Beta whether by his supervisor. That is not an excuse for
to settle or in collecting on a judgment clearly unethical conduct, but on a debat-
against Alpha. Here, however, the deceased able issue, such as the one presented here,
attorney was the only attorney who gained the subordinate lawyer is free to defer to
access to Alpha’s financial information, the supervisor’s judgment. (C) is wrong
and the attorney is now dead. Under ABA because in most jurisdictions a lawyer may
Model Rule 1.10(b), the senior partner may communicate in writing with the court
represent Beta, because neither he nor any about the merits of a pending case if he
other attorney remaining in the firm had sends a copy to opposing counsel. This
access to Alpha’s confidential information. communication is not considered ex parte.
(A) is wrong because it ignores the issue [See Restatement §113, comment c]
presented by the confidential information.
(C) is wrong because ABA Model Rule Answer to Question 19
1.10(b) creates an exception to the ordinary
rule that confidential information gained by (A) Beta’s attorney is not subject to discipline
one lawyer in a firm is deemed to be known because admission to practice in State A
by all lawyers in the firm. (D) is wrong is not required to negotiate a license there.
because ABA Model Rule 1.10(b) allows A lawyer must not practice law in a state
the senior partner to serve even without the where she is not admitted to practice. [ABA
consent of Alpha. Model Rule 5.5(a)] No state, however, would
regard the lawyer’s conduct as unauthorized
Answer to Question 18 practice. The attorney was admitted in State
B, she was representing a State B client,
(D) The associate should abide by the partner’s and the trademark license has an important
resolution of the matter. A subordi- nexus to State B because Beta’s manufac-
nate lawyer does not violate the Rules turing operations will take place in State
of Professional Conduct by acting in
304. PRACTICE EXAM 2

B. [See Hazard & Hodes, §46.6] Moreover, with the kidnapping and killing, there is a
ABA Model Rule 5.5(c)(4) permits a lawyer sharp conflict of interest between the two
to temporarily practice out of state if that defendants. [See ABA Model Rule 1.7(a)]
practice is reasonably related to the lawyer’s It would be an ethical violation to represent
home state practice. Here, the attorney’s co-defendants with conflicting interests
going to State A to negotiate a license to use (consent will not solve the conflict); thus,
Alpha’s trademark is reasonably related to the attorney can decline the appointment
her State B practice of representing Beta. on this ground. (D) raises another conflict
(B) is wrong because it is irrelevant. As of interest that would justify the attorney
discussed above, Beta’s attorney’s conduct in declining the appointment. Had he not
would not be considered to be unauthorized gained confidential information from the
practice. If it were, the fact that the license prosecution’s witness, he might have discov-
was drafted by Alpha’s lawyer would not ered that information independently and
protect Beta’s attorney. (C) is wrong because been able to use it to impeach the witness.
the attorney need not be admitted in State A As it stands, however, his ability to impeach
to negotiate with a company located there. is constrained by his duty not to use the
(D) is wrong because a lawyer need not be confidential information to the disadvan-
admitted to practice before the United States tage of the witness, his former client. [ABA
Patent and Trademark Office in order to Model Rule 1.9(c)(1)]
negotiate a trademark license. One must be
admitted to practice before that agency to Answer to Question 21
prosecute an application for a United States
(C) The federal prosecutor is subject to
patent, but the attorney is obviously not
criminal liability because his evidence-
doing that here.
gathering technique amounted to extortion,
an interstate threat against the banker for
Answer to Question 20 the purpose of extracting information to
use against the swindler. Under modern
(C) A lawyer can be disciplined for trying to statutory law, the crime of extortion covers
avoid a court appointment without good obtaining anything of value, tangible or
cause. [ABA Model Rule 6.2] The reason intangible, by making various kinds of
stated in (C) is not an acceptable reason for threats, including a threat to accuse a
declining the appointment; a lawyer has a person of a crime. [See, e.g., 18 U.S.C.
duty to represent his fair share of indigent §875(d)—felony to obtain something
or unpopular clients. [Comment 1 to ABA of value by transmitting in interstate
Model Rule 6.2] (A) is a legitimate reason commerce a threat to accuse a person of a
for declining an appointment. A lawyer is crime; see also Perkins & Boyce, 442-52]
permitted to turn down a court appoint- The information that the federal prosecutor
ment if it “is likely to result in an unreason- wanted from the banker was something
able financial burden.” [ABA Model Rule of value in the swindler investigation, and
6.2(b)] (B) is also a legitimate basis for the prosecutor clearly threatened to accuse
declining appointment because a lawyer the banker of a crime if the banker did
may turn down a court appointment if it not cooperate. Furthermore, the threat
is likely to cause the lawyer to violate a was transmitted interstate, thus bringing it
rule of professional conduct. [ABA Model within the scope of the federal statute cited
Rule 6.2(a)] If the two defendants are to above. (A) is incorrect because the federal
be tried jointly, and if one defendant did prosecutor did have a legal right to tell the
coerce the other defendant into helping State B prosecutors about the banker and
 PRACTICE EXAM 2 305.

the savings and loan, but the federal prose- substantial injury to the organization if the
cutor did not have a right to threaten to do fabric catches fire. (A) is wrong because the
so (i.e., to commit extortion) in order to attorney is entitled to reveal confidential
coerce the banker to cooperate. (B) is incor- information to prevent reasonably certain
rect because it ignores the law of extortion. death or substantial bodily harm or to
Just as it would have been illegal for the prevent substantial injury to the organiza-
federal prosecutor to extract the information tion. (B) is wrong because the repugnance
by physical torture, it was illegal to extract and criminality of the proposed conduct
it by extortion. (D) is not as good as (C) are both sufficient grounds for permissive
because it is vague and because the right to withdrawal. [ABA Model Rule 1.16(2), (4)]
be free from extortion, though important, is (D) is wrong because the duty of confiden-
not a federally protected civil right. tiality continues even after the termination
of the attorney-client relationship. [See
Answer to Question 22 comment 18 to ABA Model Rule 1.6]
(C) The attorney will not be subject to disci- Answer to Question 23
pline for reporting the matter to the appro-
priate authorities because she is entitled to (C) The attorney is subject to civil liability for
reveal this type of confidential informa- mishandling the client’s money because he
tion. The attorney may resign her in-house breached his fiduciary duty to the client.
counsel position because the company’s When the attorney received the $40,000
board insists on following a course of action from the client, he should have depos-
that is both repugnant and criminal. [ABA ited it in a client trust account, not in the
Model Rule 1.16(b)(2), (4)] The children’s account that the law firm uses for office
sleepwear is likely to cause substantial expenses. The attorney’s failure to put the
bodily harm or even death. Because a money in the correct account was a breach
lawyer is entitled to reveal confidential of fiduciary duty that can result in both
information to the extent she reasonably professional discipline under ABA Model
believes necessary to prevent reasonably Rule 1.15(a) and in civil liability under the
certain death or substantial bodily harm, principles expressed in the Restatement.
the attorney may report this matter to [See Restatement §49; see also Lurz v.
the appropriate authorities. [ABA Model Panek, 527 N.E.2d 663 (Ill. 1988)—lawyer
Rule 1.6(b)(1)] In addition, if the highest civilly liable for loss client suffers from
authority for an organization fails to take lawyer’s delay in paying money over to
appropriate action regarding a violation client] (A) is incorrect because the attorney
of law, then a lawyer for the organization remains liable even though it was the
may report the relevant information to an attorney’s law partner who withdrew the
appropriate person outside of the organiza- money from the law firm account. [See,
tion, if the lawyer reasonably believes that e.g., Blackmon v. Hale, 1 Cal. 3d 548
reporting is necessary to prevent substan- (1970)—lawyer civilly liable when former
tial injury to the organization. This is true law partner converted client’s funds] (B)
even if the information would otherwise is incorrect because a lawyer’s breach of
be protected by the duty of confidentiality fiduciary duty can result in both profes-
(which is not the case here because the sale sional discipline and civil liability to a
of the fabric is likely to cause substantial client who suffered loss as a result. (D)
bodily harm). [ABA Model Rule 1.13(c)] is incorrect because the legal standard is
Here, the sale of the fabric is a violation of breach of fiduciary duty, not strict liability.
law, and selling the fabric could result in
306. PRACTICE EXAM 2

Answer to Question 24 the $5,000 advance for expenses (leaving

an excess of $3,000). Adding $8,000
(A) The new partner and the law firm are not and $3,000 produces an $11,000 refund
subject to disqualification because from the due immediately from the attorney to
facts given in the question, it appears that the environmentalist. [ABA Model Rule
the merger matter and the age discrimina- 1.16(d)] The environmentalist apparently
tion case are not substantially related to disputes the attorney’s right to $32,000
one another, and that the firm lawyers did in fees; thus, that disputed amount must
not gain confidential information in the remain in the attorney’s client trust account
merger matter that would be material to the until the fee dispute is settled. [ABA Model
discrimination case. [See ABA Model Rule Rule 1.15(e)] (A) is wrong because when
1.9] Therefore (C) and (D) are incorrect. (B) a lawyer is fired or withdraws, he must
is incorrect because if the firm lawyers who immediately refund the unspent portion of
worked on the merger matter had obtained the expense advance and the portion of the
confidential information that would be fee advance that he does not claim to have
material in the discrimination case, their earned. [ABA Model Rule 1.16(d)] (C) is
knowledge would be imputed to the new wrong because the attorney may retain the
partner, even though he was not a member of disputed portion of the expense advance, as
the firm when the knowledge was obtained. explained above. (D) is wrong because the
[See ABA Model Rules 1.9, 1.10] attorney is entitled to retain the disputed
$32,000 in his client trust account until the
Answer to Question 25 fee dispute is settled.

(D) The firm may pay all of the money as Answer to Question 27
planned. Even though the decedent’s
daughter is a nonlawyer, the firm may (D) The judge may testify because he is testi-
make certain kinds of payments to her fying to facts, not the defendant’s character.
from money originally earned as legal CJC Rule 3.3 prohibits a judge from testi-
fees. [ABA Model Rule 5.4(a)(1)] The fying voluntarily as a character witness, but
$100,000 is a proper payment because it it says nothing about serving as an ordinary
reflects the decedent’s share of the capital fact witness. (A) is wrong because there
assets of the firm. The $45,000 is a proper is no such rule. Judges are not disquali-
payment because the fees it represents had fied from testifying in criminal cases. (B)
been earned, albeit not collected, at the is wrong because a lawyer need not be
time the decedent died. The $125,000 is admitted to practice in State B in order
a proper payment because it is a reason- to advise a client about State B law. Even
ably computed death benefit payable over a if that were untrue, the judge’s testimony
reasonable period of time. would still be admissible as evidence of the
client’s lack of criminal intent. (C) is wrong
Answer to Question 26 because it states a nonexistent rule. While a
judge is not competent to be a witness at a
(B) The attorney must promptly refund $11,000 trial over which he himself is presiding [see
because that amount is not in dispute. The Fed. R. Evid. 605], no rule forbids a judge
attorney claimed $32,000 in fees (80 hours from serving as an ordinary fact witness
at $400 per hour) from the $40,000 fee in a case that is pending before a different
advance (leaving an excess of $8,000). judge in his own court or a court that is
The attorney further claimed $2,000 from under his court’s appellate jurisdiction.
 PRACTICE EXAM 2 307.

Answer to Question 28 her loan payments to her income, and the

arrangement does not invite the evil that the
(C) The attorney’s actions were not proper no-splitting rule was designed to prevent—
because a lawyer should fully advise a interference with the attorney’s professional
client of all relevant information, particu- judgment.
larly when the lawyer has reason to believe
that the information would be regarded as Answer to Question 30
important by the client. The lawyer should
furnish the client with all the informa- (B) The attorney’s conduct was not proper
tion that is necessary to allow the client to because she pretended to be disinterested
participate intelligently in making decisions and advised the ex-husband to pay the
about the matter. [ABA Model Rule 1.4] extra money. When dealing on behalf of
Here, the existence of the statute was a fact a client with a person who is not repre-
necessary for the client to know to make an sented by counsel, a lawyer must not state
intelligent decision about how to proceed. or imply that the lawyer is disinterested,
(A) is wrong because it is not the attorney’s and the lawyer must not give that person
place to withhold information because she advice (other than advice to secure counsel)
believes she knows what is best for the if the lawyer knows that the person’s
client. The client is entitled to all relevant interests may conflict with those of the
information. (B) is wrong because the state client. Clearly, the ex-husband’s inter-
policy does not absolve the attorney from ests do conflict with the wife’s interests.
her ethical duty to keep her client informed. [ABA Model Rule 4.3] Here, the attorney
(D) is wrong because the attorney does not advised the ex-husband that he ought to pay
owe a duty to the minor from the mere fact increased alimony and child support. She
that she is a minor. compounded the problem by pretending to
be disinterested, a direct violation of Rule
Answer to Question 29 4.3. (A) is wrong because it is overbroad; it
was proper, for example, for the attorney to
(A) The attorney is not subject to discipline advise the ex-husband to get a lawyer and
unless she allows the client to interfere with to offer to postpone the hearing. Moreover,
her judgment in handling other clients’ if an adversary refuses to retain counsel, a
matters. [See ABA Model Rule 5.4] (B) lawyer must communicate directly with that
is wrong because there is no law or disci- person. (C) is wrong because making those
plinary rule that requires the attorney to statements does not exempt the attorney
notify the law firm regarding the trans- from those provisions that prohibit implying
action. (C) is wrong because no law or disinterest and giving advice. (D) is wrong
disciplinary rule requires the law firm’s because the attorney did give advice to the
consent to the client’s leaving the firm ex-husband—the advice to pay the extra
and giving his business to the attorney as money that the wife was asking for.
a solo practitioner. (D) is wrong because
the loan payback clause does not violate Answer to Question 31
the rule against splitting a legal fee with
a nonlawyer. [ABA Model Rule 5.4(a)] (C) The attorney is not subject to discipline
True, the clause does measure the monthly for disclosing the defendant’s confidential
payments as a percentage of the attorney’s information to the professor because the
net income in the prior month and most of disclosure was necessary to effectively
her net income will probably come from carry out the representation. Unless a client
legal fees. However, it makes sense to tailor has specifically instructed the lawyer to the
308. PRACTICE EXAM 2

contrary, a lawyer can reasonably assume attorney in gratitude for years of work in
that he has implied authority from the client the past.
to disclose confidential information when
necessary to carry out the representation. Answer to Question 33
That is particularly true in cases such as
this one—where the lawyer cannot easily (D) The public defender may not reveal the
communicate with his client. [ABA Model defendant’s perjury because to do so would
Rule 1.6(a)] (A) is wrong because a lawyer violate the public defender’s duty of confi-
may seek advice from an expert without dentiality. No exceptions to the confiden-
the expert being licensed in the jurisdic- tiality requirement apply to these facts.
tion; and in any case, it does not affect the There is no indication that revealing the
confidentiality rules. (B) is wrong because perjury is necessary to prevent reasonably
specific authorization is not required; it may certain death or substantial bodily harm.
be implied. (D) is wrong because refraining Also, there is no indication that the defen-
from revealing the client’s name is not suffi- dant’s perjury is a crime that is reasonably
cient to permit revelation of confidential certain to result in substantial injury to the
information. There must be an exception to financial interests of another, in furtherance
the confidentiality rules or authorization by of which the defendant has used the public
the client. defender’s services. The obligation to reveal
perjury under the Model Rules does not
Answer to Question 32 apply because that obligation ceases at the
end of the proceedings, and both proceed-
(C) The attorney would not be subject to disci- ings here have concluded. (A) is wrong
pline for accepting the sculpture because because the proceeding has ended and,
he did not solicit the gift. Although ABA therefore, the public defender is obligated
Model Rule 1.8(c) prohibits a lawyer from to keep the information in confidence. (B)
soliciting a substantial gift from a client is wrong for the same reason. Furthermore,
when the lawyer is not related to the client, even if the trial was ongoing, the public
it does not prohibit a lawyer from accepting defender would not be obligated to reveal
an unsolicited gift from a client, even if the the perjury because he was not representing
gift is substantial (although the gift may be the defendant at trial. The public defender
voidable for undue influence). Moreover, represented the defendant in the prelimi-
comment 6 to ABA Model Rule 1.8 states nary hearing, which has concluded, ending
that a lawyer may accept a gift from a client his obligation to disclose. (C) is wrong
if the transaction meets general standards because what the public defender believes
of fairness. Here, the attorney did not solicit about the defendant’s dangerousness is
the gift, and there are no facts to suggest not relevant. There is no exception to the
undue influence or unfairness. Thus, the duty of confidentiality based on the client’s
gift is proper. (A) is wrong because it is violent propensities.
too broad. A lawyer may accept a gift of
substantial value from a client if the condi- Answer to Question 34
tions stated above are satisfied. (B) and
(D) are wrong because the value of the (C) The arrangement is not proper because
attorney’s recent work and the value of the the attorney is required to keep $10,000
sculpture are irrelevant. The attorney did on deposit to be included on the list. A
not charge more than the $750. In addition lawyer may not give “anything of value”
to discharging the $750 fee bill, the sculptor to a person for recommending the lawyer’s
obviously intended to make a gift to the services. [ABA Model Rule 7.2(b)] The
 PRACTICE EXAM 2 309.

bank benefits in many ways by increasing is wrong because a lawyer is prohibited

the amount of its deposits; for example, its from acquiring a proprietary interest in the
deposits determine how much it can lend to subject of litigation he is conducting [ABA
borrowers. Thus, obtaining deposits from Model Rule 1.8(i)], and obtaining a patent
lawyers is of value to the bank, and that is not litigation. Even if this were a litiga-
is one reason it has devised the referral tion case, the contingent fee exception to
scheme. (A) is wrong because although the rule would apply. [ABA Model Rule
a lawyer may pay the usual charges of a 1.8(i)(2)] (B) is wrong because a fee that
not-for-profit or qualified lawyer referral is otherwise reasonable does not become
service [ABA Model Rule 7.2(b)], banks unreasonable simply because the lawyer
operate for profit, and there is no indica- can use the knowledge gained to earn fees
tion that the bank has been approved by the from other clients. (C) is wrong because
appropriate regulatory authority as a quali- the mere fact that the client agreed to the
fied lawyer referral service. (B) is wrong fee arrangement does not by itself make the
because the attorney is giving something fee reasonable. Many factors, including the
of value for the referrals, as explained time, labor, and skill required to do the job,
above, even though there is no fee for are considered in determining whether the
individual referrals. (D) is wrong because fee is reasonable. [ABA Model Rule 1.5(a)]
this arrangement does not constitute an
improper partnership or association with a Answer to Question 36
nonlawyer for the purpose of practicing law.
A lawyer’s professional association with a (A) The attorney is not subject to discipline
nonlawyer is improper if the nonlawyer: (1) because she did the best she could in an
owns an interest in the practice; (2) is an emergency situation. In an emergency situa-
officer or director of a business involving tion, a lawyer may give legal advice on a
law practice; or (3) has the right to control matter that she would not be competent to
the lawyer’s professional judgment. [ABA handle in an ordinary situation. [Comment
Model Rule 5.4(d)] None of these is the 3 to ABA Model Rule 1.1] Here, the attor-
case here; the bank is acting solely as a ney’s advice was limited to the narrow
referral agent, and has nothing to do with question the client posed. She is not subject
the operation of the attorney’s practice. to discipline because she did the best she
could in the heat of the moment, and she
Answer to Question 35 warned the client about the dangers of
relying on unresearched legal advice. (B)
(D) The attorney is not subject to discipline is wrong because a lawyer who renders
because $9.7 million is within the bounds advice about the law of another jurisdiction
of reason as a fee for the work the attorney in an ordinary, nonemergency situation is
did. [See ABA Model Rule 1.5(a)] Among expected to be competent to render such
the various factors that point to the reason- advice. [ABA Model Rule 1.1] (C) is wrong
ableness of the attorney’s fee are: the because the attorney was not engaged in
novelty and difficulty of the patentability unauthorized practice when she advised
issue, the fact that the inventor was the one her client about foreign law. She need not
who suggested the fee arrangement after be admitted in another country in order to
having been offered a standard hourly fee, advise her local client about foreign law.
the value of the result that the attorney (D) is wrong because the attorney is not
obtained for the inventor, and the contin- subject to discipline for rendering legal
gent nature of the arrangement, which advice that turns out to be mistaken if she
imposed a high risk on the attorney. (A) acted competently in light of the time-
310. PRACTICE EXAM 2

constrained circumstances in which she the constituent to obtain independent legal

found herself. counsel. [Comment 10 to ABA Model Rule
1.13] The attorney’s client is the corpora-
Answer to Question 37 tion, and the corporation’s interests are in
conflict with the interests of the treasurer.
(B) The attorney may act as the music star’s If the corporation proves that the treasurer
trial counsel because he is not a neces- had no authority to sign the note, the bank
sary witness. [ABA Model Rule 3.7(a)] may sue the treasurer himself. If the corpo-
A roomful of witnesses heard the diner’s ration is held liable to the bank, it may
comments and could testify to them. sue the treasurer for indemnification. In
Moreover, the diner has made a judicial these circumstances, the treasurer needs
admission that he made the statements; his own lawyer, and the attorney must not
thus, no testimony is required on that point. try to represent both him and the corpora-
The attorney has no knowledge as to the tion. Furthermore, because the treasurer
truth of the statements, as he knows nothing is presently unrepresented in the matter
of the star’s personal life; thus, he would and his interests conflict with those of
have no relevant testimony on that issue. the corporation, the attorney must not try
Therefore, the attorney is neither a “neces- to give him legal advice, except to get a
sary” witness, nor a witness who “ought” lawyer. [See ABA Model Rule 4.3] (B) is
to be called. (A) is wrong because there is wrong because the attorney must not try to
no need for informed consent in this situa- represent the treasurer at the deposition due
tion. (C) is wrong because even if there is to the conflict of interest explained above.
a remote possibility that the attorney might (C) is wrong because the attorney must not
be called, he is not a necessary witness, try to give the treasurer legal advice, except
and it is unlikely that he would be called to get a lawyer. (D) is wrong for the reason
by the diner’s lawyer because he could not just stated. Furthermore, as the corpora-
have anything favorable or relevant to add. tion’s lawyer, the attorney must not give
A mere remote possibility that a lawyer will legal advice to a person with conflicting
be called as a witness is not sufficient to interests (particularly advice to testify
disqualify the lawyer from representing a in such a way as to damage her client’s
client. (D) is wrong because every lawyer position).
generally is considered competent to take
any case as long as the lawyer sufficiently Answer to Question 39
prepares. Here, the attorney spent consid-
erable time preparing before he filed the (A) The attorney is subject to discipline because
complaint. his actions in State B constitute fraud. A
lawyer is subject to discipline not only for
Answer to Question 38 violating a disciplinary rule, but also for
committing a criminal act that reflects
(A) The attorney should not discuss the matter adversely on his honesty, trustworthiness,
with the treasurer, and should advise him or fitness as a lawyer in other respects, or
to hire his own lawyer. When an organiza- for engaging in conduct involving dishon-
tion is the lawyer’s client, the lawyer owes esty, fraud, deceit, or misrepresentation.
the duty of loyalty to the organization—not [ABA Model Rule 8.4] The type of fraud
to the people who are its constituents. If described clearly falls within this rule. (B)
there is a conflict between the interests of is wrong because a lawyer is subject to
the organization and the interests of one of discipline in a state where he is licensed to
its constituents, the lawyer should advise practice even if the misconduct occurred
 PRACTICE EXAM 2 311.

in another jurisdiction. [ABA Model Rule lawyer must not counsel or assist a client in
8.5(a)] (C) is wrong because the fact that conduct that the lawyer knows is criminal
the attorney was not licensed in State B or fraudulent. However, a lawyer may
is irrelevant. He was not practicing law in counsel or assist a client to make a good
State B, so he is not subject to discipline faith effort to determine the validity, scope,
on the ground of unauthorized practice. He meaning, or application of a law even if it
is subject to discipline, however, for filing requires the client to disobey the law. [ABA
improper tax returns. As discussed above, Model Rule 1.2(d)] This situation usually
the attorney cannot escape discipline for his arises when a lawyer is asked how a partic-
fraudulent conduct because it occurred in ular law may be challenged, and the lawyer
another jurisdiction. (D) is wrong because, advises the client on ways to obtain legal
as discussed above, a lawyer may be disci- standing, which include disobedience of the
plined for dishonest conduct regardless of law. Here, the attorney was merely advising
whether it is related to the practice of law. the landlord on methods of obtaining legal
standing, including renting houses in viola-
Answer to Question 40 tion of the ordinance. (B) is wrong because
the ultimate outcome of the challenge is
(C) A lawyer must not provide financial assis- irrelevant. It is important that the attorney
tance to a client in the context of contem- believed there was a good faith basis for
plated or pending litigation, with the challenging the validity of the ordinance,
following exceptions: (1) the lawyer may but whether the challenge succeeds does
advance court costs and litigation expenses not determine the propriety of his conduct.
on the client’s behalf; (2) where the client (C) is wrong because, as discussed above,
is indigent, the lawyer may pay the court there is an exception to this rule for a good
costs and litigation expenses outright; and faith effort to determine the validity of
(3) where the lawyer is representing an a law. (D) is wrong because there is no
indigent client pro bono, the lawyer may affirmative duty to counsel the client in this
provide modest gifts to the client for basic way. In fact, as discussed above, there is an
living expenses. [ABA Model Rule 1.8(e)] exception for a good faith challenge to the
The attorney is not representing the client law that would permit the attorney to do
pro bono in this lawsuit, so the attorney is just the opposite.
allowed to advance court costs and litiga-
tion expenses only, and must not provide Answer to Question 42
any other financial assistance. (C) repre-
sents court costs and litigation expenses, (B) The attorney’s actions are proper because
which are permissible. Family support is he offered his services free of charge.
not an expense of litigation; thus (A) is Generally, a lawyer is prohibited from
improper. Similarly, treatment of the client’s seeking employment by initiating live
injuries and job retraining are not expenses person-to-person contact with a person
of litigation, therefore (B) and (D) also are known to need legal services in a particular
improper. matter. However, this prohibition applies
only when “a significant motive” for the
Answer to Question 41 solicitation is the lawyer’s pecuniary gain.
[ABA Model Rule 7.3(b)] Thus, a lawyer
(A) The attorney’s conduct was proper because who volunteers to represent someone free
violating the ordinance was one of the of charge is not subject to discipline for
ways to gain legal standing to challenge solicitation. (A) is incorrect because, as
the constitutionality of the ordinance. A
312. PRACTICE EXAM 2

discussed above, it is not necessary for the incorrect because a lawyer has no ethical
attorney to have previously represented obligation to reveal harmful facts, and, in
any of the demonstrators in order for his fact, may be disciplined for doing so. (B)
actions to have been proper. (C) is incorrect is incorrect because, as noted above, there
because, as discussed above, this situa- is no duty to reveal this information; thus,
tion falls within an exception to the ban on there is no obligation to urge the client to
live person-to-person solicitation. (D) is reveal the information or withdraw. (D) is
incorrect because the attorney’s actions are incorrect because this information is confi-
proper even if he is motivated by a desire to dential. The ethical duty of confidentiality
obtain publicity, provided that this is not a covers more kinds of information than
substantial motive for his offer. the attorney-client privilege, which covers
only confidential communications between
Answer to Question 43 the lawyer and client. The ethical duty of
confidentiality covers any information the
(D) A judge may not be affiliated with an lawyer obtains relating to the representation
organization that practices invidious of the client, no matter what the source of
discrimination on the basis of race, sex, the information.
gender, religion, national origin, ethnicity,
or sexual orientation. [CJC Rule 3.6] The Answer to Question 45
corporation excludes gay people who are
otherwise qualified, making it improper (B) The judge’s actions were proper because he
for the judge to continue as chief execu- did not charge his mother a fee. Although a
tive officer. (A) is incorrect because it fails full-time judge may not practice law, there
to include sexual orientation discrimina- is an exception for this type of transac-
tion. (B) is incorrect because, as discussed tion. A judge may, without compensation,
above, the judge’s remaining an officer in give legal advice to, and draft and review
the corporation would be improper even if documents for, a member of the judge’s
the time it took did not interfere with her family. [CJC Rule 3.10] (A) is wrong
judicial duties. (C) is incorrect because it is because whether the buyer might appear in
too broad; CJC Rule 3.11(B) allows a judge the judge’s court does not affect the judge’s
to be involved with a business that is closely ability to prepare documents for his mother.
held by the judge or her family. If the buyer does appear in his court, the
judge’s participation in that proceeding
Answer to Question 44 will be evaluated at that time in light of
the facts. (C) is wrong because, as stated
(C) The attorney should keep the information above, there is an exception for reviewing
in confidence unless the client authorizes documents for relatives without compensa-
her to reveal it, even though the death of tion. (D) is wrong because, although the
the landlord has made it impossible for judge cannot act as a negotiator, there is no
the prosecutor to obtain the information requirement that his identity as the person
other than from the attorney. The attorney who made the revisions be kept a secret.
obtained this information from the landlord
in the course of representing her client; Answer to Question 46
therefore, it is subject to the attorney’s duty
of confidentiality. Absent the consent of (D) It would not be proper for the attorney to
the client, a lawyer must not reveal any have his name included on the agency’s
information relating to the representation list because the agreement allows a third
of the client. [ABA Model Rule 1.6] (A) is party to exercise influence over the lawyer-
 PRACTICE EXAM 2 313.

client relationship. A lawyer must not allow Rule 3.7(A)(2)] Thus, (B) is improper. (A)
a person who recommends, employs, or is proper because Judge Jones, like anyone
pays her for serving a client to direct or else, may contribute to any cause she likes.
regulate the lawyer’s professional judgment. (C) is proper because a judge may assist
[ABA Model Rule 5.4(c)] The agency is, an organization in planning fund-raising,
in effect, recommending the attorney, and although the judge may not actually partici-
the restriction on withdrawal in the form pate in the fund-raising activity. [CJC Rule
agreement clearly interferes with the attor- 3.7(A)(1)] A judge must not be a speaker or
ney’s professional judgment. (A) is wrong guest of honor at an organization’s fund-
because the good intentions behind the list raising event, but mere attendance at such
do not remove the interference with the an event is permissible. [CJC Rule 3.7(A)(4),
attorney’s professional judgment. Likewise, comment 3] Thus, (D) is proper.
(B) is wrong because, even if the attorney
does not give the agency anything of value, Answer to Question 49
the arrangement is still improper because
of the restriction on withdrawal. (C) is (D) A lawyer may require his fee to be paid
wrong because the list does not amount to in advance and may accept property in
improper solicitation. return for services, provided it does not
involve a proprietary interest in the subject
Answer to Question 47 of litigation. [Comment 4 to ABA Model
Rule 1.5] Thus, the attorney here has done
(C) Alpha is not subject to discipline because nothing wrong. (A) is incorrect because,
Beta earned the fee prior to his suspen- as discussed above, a lawyer may take an
sion. Despite his suspension, Beta is advance. (B) is incorrect because the coat is
entitled to the fees he earned while he not the subject of litigation; thus, accepting
was still lawfully practicing law. It is true the coat as payment was proper. (C) states
that a lawyer is prohibited from aiding a the correct conclusion but is based on
nonlawyer in the unauthorized practice of a faulty rationale—the propriety of the
law, but here Beta is not practicing law, and attorney’s conduct does not depend on the
Alpha is merely forwarding his previously client’s reputation for paying bills.
earned fee. (A) is wrong because Beta need
not wait until he is reinstated to collect a Answer to Question 50
fee he earned prior to his suspension. (B)
is wrong because Beta is not a nonlawyer, (C) The attorney is not subject to discipline
and Alpha is not splitting legal fees with because he did not make any false or
him in any case. Alpha is merely trans- misleading claims about himself or his
mitting Beta’s own money to him. (D) is services. Lawyers, like other citizens, have
wrong because the money does not belong the right to express their views in the media
to Alpha, and even if it did, she cannot do on newsworthy issues. Even if a lawyer’s
anything she wishes with it. For example, sole purpose in seeking media publicity
there are rules prohibiting the sharing of is to lure clients, the state may not impose
legal fees with nonlawyers. professional discipline on the lawyer absent
a compelling state interest. A lawyer who
Answer to Question 48 uses the media to lure clients may, however,
be disciplined for making statements or
(B) A judge may not personally solicit contribu- claims that are false or misleading about the
tions for an organization other than from lawyer or his services. [ABA Model Rule
her family or certain other judges. [CJC 7.1] Here, the attorney made no statements
314. PRACTICE EXAM 2

about himself or his services other than the judge overrules the privilege claim and
the fact that he is a lawyer and his opinion the attorney nevertheless refuses to answer
about the incident. There is nothing false the question, she can be sanctioned for
or misleading in his communication. (A) is contempt of court.
wrong because, as discussed above, the fact
that the attorney was motivated by the desire Answer to Question 52
to attract fee-paying business is irrelevant.
This is not a case of live person-to-person (B) ABA Model Rule 5.5(c) concerns tempo-
solicitation, which is the only circumstance rary practice in a state where the lawyer
in which this consideration is relevant. (B) is not admitted. Rule 5.5(c)(4) permits the
is wrong because it is overbroad. Lawyers attorney to practice temporarily in State B
can and do make public statements about to the extent that his work in that state is
pending litigation all the time. Lawyers reasonably related to the work he does for
who are involved in a proceeding cannot the company in State A. However, because
make statements that they know will have State B requires out-of-state lawyers to seek
a substantial likelihood of materially preju- pro hac vice admission before engaging
dicing an adjudicative proceeding. [ABA in pretrial preparation, ABA Model Rule
Model Rule 3.6(a)] That is not the case here; 5.5(c)(2) and (3) require the attorney to
the attorney has no reason to believe his seek such admission. (A) is wrong because
opinion will materially prejudice the state the application of ABA Model Rule 5.5(c)
agency bringing the action. (D) is wrong to the attorney’s situation is clear, not debat-
because the fact that the statement was able. (C) is wrong because ABA Model
printed in the newspapers is of absolutely no Rule 5.5(c) allows the attorney to perform
consequence; it does not affect the propriety the assigned tasks without taking a bar
of the attorney’s behavior regardless of exam in State B. (D) is wrong because
whether he gave consent. associating a local lawyer is only one of
four different ways to satisfy ABA Model
Answer to Question 51 Rule 5.5(c).

(A) (C) is incorrect because there is no disci- Answer to Question 53

plinary rule against a lawyer acting as
(C) ABA Model Rule 7.2(c) prohibits a lawyer
a third-party neutral in a family law
from stating or implying that she is a certi-
matter, and it was proper for the attorney
fied specialist unless she has been certi-
to undertake the neutral’s role in helping
fied by an appropriate organization that is
the husband and wife try to resolve their
clearly identified in the lawyer’s commu-
marital problems. [See Restatement §130,
nication. The attorney’s ad appears to have
comment d] (D) is incorrect because the
been artfully crafted to make unsophisti-
facts contain nothing to support a civil
cated readers think that the attorney has
claim against the attorney for the work she
been certified by the state bar. Thus, the
did as a third-party neutral. (B) is incorrect
ad violates both ABA Model Rule 7.2(c)
because when two parties jointly consult
and ABA Model Rule 7.1, which prohibits
a lawyer on a matter of common interest,
misleading advertising. As for the attor-
neither of them can claim the attorney-
ney’s reciprocal referral relationship with
client privilege in subsequent civil litigation
the solo practitioner, the applicable rule is
between them. [See Restatement §75] (A) is
ABA Model Rule 7.2(b)(4), which permits
correct because the husband cannot claim
a reciprocal referral agreement between
the privilege for the reason stated above. If
lawyers, provided that the agreement is
 PRACTICE EXAM 2 315.

nonexclusive and the referred clients are told support. The five lawyers who contributed
about the existence and nature of the agree- money will be subject to discipline if the
ment. ABA Model Rule 7.2(b)(4) has not yet attorney wins and if they accept appoint-
been prominently interpreted, leaving one ments from him. [See ABA Model Rule 7.6]
to wonder whether the relationship between (B) is wrong because the attorney is subject
the attorney and the solo practitioner should to discipline under CJC Rule 4.1(A)(8), as
be regarded as an “agreement.” On the one noted above. The second sentence of (B) is
hand, the question states that they have no wrong because it overstates the constraints
“formal reciprocal referral agreement.” On on a lawyer’s participation in a judicial
the other hand, in some legal contexts, a campaign. (C) is wrong because the five
consciously reciprocal course of dealing lawyers who contributed money violated
can be the equivalent of an agreement. [See, ABA Model Rule 7.6, as noted above. The
e.g., United States v. Container Corp. of first sentence of (C) is a misapplication
America, 393 U.S. 333 (1969)—competi- of CJC Rule 4.1(A)(13), which prohibits a
tors’ reciprocal exchange of price data was judge from making pledges or promises that
held to be an agreement under section 1 of are inconsistent with the impartial perfor-
the Sherman Antitrust Act] However, for mance of the judge’s adjudicative duties “in
purposes of this question, the relationship connection with cases, controversies, or
between the attorney and the solo practi- issues that are likely to come before the
tioner will be deemed an agreement under court.” Here, the policy regarding whom
ABA Model Rule 7.2(b)(4) because it is the probate judge will appoint as adminis-
bound to influence their judgment about trators’ counsel is not the kind of litigation
referrals to some degree. Here, the relation- issue to which the highlighted language
ship violates the nonexclusive require- of CJC Rule 4.1(A)(13), above, refers. The
ment because the two lawyers follow the second sentence of (C) is wrong because
pattern “without exception.” Furthermore, the motive of the five money contributors
the relationship would be proper only if was to obtain appointments if the attorney
the attorney tells referred clients about the won. [See ABA Model Rule 7.6] (D) is
relationship so that they can decide for wrong because a lawyer who runs for a
themselves how to value the referral. One judicial post must follow the CJC. [See CJC
can reach the same conclusion by applying Rule 4.1, comment 2] The second sentence
ABA Model Rule 1.7(a)(2)—the attorney’s of (D) is wrong because ABA Model Rule
reciprocal relationship with the solo practi- 7.6 trumps whatever privacy rights one can
tioner gives the attorney a personal interest find in the peripheral glow of the First and
(obtaining future referrals) that is in conflict Fourteenth Amendments.
with the interest of her client (obtaining an
unbiased referral). The conflict could be Answer to Question 55
solved only by full disclosure and informed
consent of the affected client, confirmed in (B) The county legal advice hotline is the kind
writing. [ABA Model Rule 1.7(b)] of operation envisioned in ABA Model
Rule 6.5. Under ABA Model Rule 6.5,
Answer to Question 54 walk-in legal clinics, advice-only clinics,
legal advice hotlines, and the like are
(A) The attorney is subject to discipline under not held to the high conflict-of-interest
CJC Rule 4.1(A)(8), which prohibits a standards that govern ordinary law offices.
judicial candidate from personally soliciting Legal hotlines, walk-in clinics, and similar
campaign contributions or publicly stated providers of quick legal service typically
316. PRACTICE EXAM 2

operate under conditions that make it the lawyer conflict of interest rules when
difficult or impossible to conduct ordinary she acts as sports agent. [See comment 10
conflict-of-interest checks. Under ABA to ABA Model Rule 5.7] When the attorney
Model Rule 6.5(b), the second lawyer diverted the bank ad campaign from Alpha
would be subject to discipline only if he to Beta, she violated ABA Model Rule
actually knew that the first attorney had 1.7(a)(1) (concurrent conflict when the
previously counseled the mother of the representation of one client will be directly
abused children. A lawyer’s actual knowl- adverse to another client), or at least ABA
edge can be inferred from the circum- Model Rule 1.7(a)(2) (significant risk that
stances [ABA Model Rule 1.0(f)], but the the representation of one client will be
question does not mention any circum- limited by the lawyer’s responsibility to
stances from which an inference could be another client). Incidentally, the attorney
made that the second lawyer had actual may also be subject to civil liability in a
knowledge. (A) is wrong because it fails to suit by Alpha for breaching the duty of
account for ABA Model Rule 6.5. (C) is loyalty an agent owes to a principal. [See
wrong because, absent actual knowledge Restatement of the Law of Agency 2d
of a conflict, the rule of imputed disquali- §§391, 394] (A) is wrong for the reasons
fication does not apply between two stated above. (B) is wrong because the
lawyers in a quick-legal-service program. separate charging arrangement is not suffi-
[See comment 4 to ABA Model Rule 6.5] cient by itself to clearly segregate the attor-
(D) is wrong because both the mother ney’s sports agent work from her lawyer
and father were “clients” of the respective work. (C) is wrong because the attorney is
lawyers who advised them. [Comment 1 not doing the “same work” when she acts as
to ABA Model Rule 6.5] This is impor- sports agent for two different players.
tant because ABA Model Rule 6.5 loosens
only the conflict-of-interest rules, not other Answer to Question 57
aspects of the lawyer-client relationship,
such as the duty of competence, the duty of (A) ABA Model Rule 1.17 permits a lawyer to
diligence, and the duty of confidentiality. sell her entire law practice, or an area of her
law practice, to one or more lawyers or law
Answer to Question 56 firms. Here, the solo practitioner sold her
entire law practice to two different lawyers,
(D) ABA Model Rule 5.7 provides that when a and ABA Model Rule 1.17 permits that.
lawyer offers another kind of service ancil- The departure of 40% of the solo practi-
lary to her practice of law, and the ancillary tioner’s clients does not cause the sales to
service is provided “in circumstances that violate ABA Model Rule 1.17. Indeed ABA
are not distinct from the lawyer’s provi- Model Rule 1.17(c)(2) requires the selling
sion of legal services,” the lawyer must lawyer to notify her clients that they have
follow the legal ethics rules in the ancillary a right to pick up their files from the buyer
service as well as the legal service. Here, and take them to a different lawyer. [See
the attorney does bill separately for her two also comment 2 to ABA Model Rule 1.17]
kinds of service, but she offers both out of (B) and (D) are wrong because clients are
the same office, and the tasks she does as not like sheep that can be bought and sold,
sports agent shade imperceptibly into the willy-nilly. To hold the solo practitioner
tasks she does as lawyer, as is illustrated either subject to discipline or civilly liable
by the exclusive sponsorship contract with in unjust enrichment would be inconsistent
the bank. Thus, the attorney must follow with the clients’ right to pick up their files
 PRACTICE EXAM 2 317.

and take them to a different lawyer. The not subject to the jurisdiction of the SEC.
solo practitioner, Alpha, and Beta made The associate is subject to discipline for
their sales contracts in the context of ABA tipping off the Justice Department because
Model Rule 1.17 so Alpha and Beta cannot he violated the duty of confidentiality
claim that they were surprised when clients imposed by ABA Model Rule 1.6(a). When
departed. (C) is wrong because ABA the antitrust attorney and the associate
Model Rule 1.17(b) permits a lawyer to sell investigated the price fixing rumor at the
her entire practice to one or more lawyers request of the company’s general counsel,
or law firms. One might also argue that they were operating under ABA Model
the solo practitioner’s medical malpractice Rule 1.13(d), which applies to lawyers who
cases are in a different “area of practice” are hired “to investigate an alleged viola-
(professional malpractice) from her tion of law” or to “defend an organiza-
products liability cases. But that argument tion” or its people against a claim arising
is not necessary here because the solo out of an alleged violation of law. That
practitioner sold her entire law practice. means that ABA Model Rule 1.13(c) does
not apply, and they must not report to
Answer to Question 58 outsiders about what they find. Both parts
of (A) are wrong—the antitrust attorney
(D) ABA Model Rule 1.6(b)(4) and comment 9 acted properly, and the associate is subject
explain that a lawyer may reveal informa- to discipline, as explained above. (B) is
tion that would otherwise be confidential wrong because the associate’s conduct
if the lawyer’s purpose is to obtain legal was not proper. Moreover, the associate
advice about complying with the legal probably committed legal malpractice
ethics rules. (A) is wrong because the when he tipped off the Justice Department,
applicable doctrine here is the ethical duty and the antitrust attorney might be vicari-
of confidentiality, not the attorney-client ously liable for his malpractice because she
privilege, and the ethical duty contains the was his supervisor. (D) is wrong because
exception described above. (B) is wrong the associate is subject to discipline for
because the exception to the ethical duty violating ABA Model Rule 1.6(a).
would apply in this situation, whether or
not the attorney identified the dealer by Answer to Question 60
name. As a practical matter, however, a
lawyer who discloses confidential informa- (A) A lawyer must not communicate ex parte
tion to obtain legal ethics advice may wish with a juror unless authorized by law or
to couch the information hypothetically, in court order. [ABA Model Rule 3.5(b)]
order to minimize the chance of harm to Communicating with a juror is gener-
the client. [See comment 4 to ABA Model ally improper even if the subject matter
Rule 1.6] (C) is wrong because the excep- is unrelated to the case. [See Restatement
tion to the ethical duty would apply in this §115] Here, the attorney’s remark about his
situation whether the drug dealer or the client’s injuries was a clear violation. (D)
sales associate is regarded as the client. is incorrect because the prohibition applies
even if the juror initiated the conversation.
Answer to Question 59 (C) is incorrect. Although ABA Model Rule
3.5(a) forbids a lawyer from attempting to
(C) This question is governed by ABA Model influence a juror, the prohibition on ex parte
Rule 1.13, not by the SEC’s regulations communications is separate and applies
under the Sarbanes-Oxley Act, because regardless of the lawyer’s intentions. (B) is
the company is not publicly owned and is
318. PRACTICE EXAM 2

incorrect because it is immaterial whether

the jury returned a verdict for the plain-
tiff—the communication was improper
regardless of whether it ultimately benefited
the attorney’s client.
 PRACTICE EXAM 3 319.

PRACTICE EXAM 3

Question 1 Question 2

A corporation is named as the defendant in A juvenile charged with auto theft, which is a
an employment discrimination suit. The corpo- felony, hires an attorney to represent him. Before
ration’s attorney has scheduled the taking of a the case comes to trial, his attorney confers
deposition of one of the corporation’s employees with the prosecutor who has been assigned to
who is in poor health, as a precaution in case the prosecute the case. The prosecutor suggests to
employee should die before trial. The employee the juvenile’s attorney that, because her client
is not an officer or shareholder in the corpora- is a juvenile, the charge might be reduced to
tion, and he is not a party to the lawsuit. He is “joyriding,” a misdemeanor. The juvenile’s
in charge of the corporation’s personnel depart- attorney flatly refuses without explanation,
ment, and he is responsible for ensuring that unreasonably, in the prosecutor’s opinion.
the corporation’s hiring practices comply with
the laws against employment discrimination. It would be improper conduct for the prose-
Without seeking the consent of the corpora- cutor to:
tion’s attorney, or even telling him, the plaintiffs’
attorney had lunch with this employee several (A) Ask the court to dismiss the auto theft
days before the deposition, and on that occasion charge and prosecute the juvenile for joy-
the plaintiffs’ attorney pumped the employee riding.
for information relevant to the lawsuit. When
the corporation’s attorney learned what had (B) Prosecute the auto theft charge.
happened, he telephoned the plaintiffs’ attorney
and called him a slimy, mud-sucking sneak. (C) Send an investigator to talk to the juvenile
about the offer to lower charges.
Which of the following is correct?
(D) Remind the juvenile’s attorney of the duty
(A) The corporation’s attorney’s conduct was to communicate settlement offers to the
proper. client.

(B) The plaintiffs’ attorney’s conduct was

proper.

(C) The plaintiffs’ attorney is subject to disci-

pline because he should not have talked
with the employee about the case without
the consent of the corporation’s attorney.

(D) The plaintiffs’ attorney is subject to disci-

pline because he talked with a deposition
witness about the subject of the litigation
before the deposition was taken.

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320. PRACTICE EXAM 3

Question 3 Question 4

A man who has been arrested and charged During his second year in law school, a
with aggravated battery hires an attorney law student’s wife divorced him, as a result of
recommended to him by his brother. Neither which he suffered serious emotional imbal-
the accused nor his brother knows that the ance. Ultimately, he managed to graduate, and
attorney plans to run for public office and is the state bar sent a routine form letter to one
always interested in getting as much publicity as of his professors, asking her to comment on
possible. She is often referred to in the press as a the law student’s fitness to practice law. The
“hotshot” criminal defense attorney, and almost professor is a member of the bar of that state. In
all of her victories over the state are publicized. response, she gave her candid opinion—that the
Before the accused’s trial begins, the assistant law student was prone to extreme and irrational
district attorney (“ADA”) who has been assigned tirades against women, and that he was not yet
by the district attorney’s office to prosecute the recovered from his emotional trauma. Based
case suggests to the accused’s attorney that, partly on this information, the state bar denied
because her client is a first-time offender and an the law student’s petition for admission. Now,
otherwise model citizen, and there were certain three years later, the law student has asked the
extenuating circumstances that would cause a professor to support his re-petition for admission.
jury to be sympathetic to him, the charge might After carefully checking the facts, the professor
be reduced to simple battery, a misdemeanor. concludes that the law student has regained his
The attorney refuses, telling the ADA that she emotional balance.
is not about to cop a misdemeanor plea for her
client because her client is socially prominent, Which of the following is correct?
and trying the case will bring both a great deal
of publicity and greater vindication for her client. (A) Three years ago, it would have been proper
The attorney did not discuss the misdemeanor for the professor to keep her opinion to
plea with her client, and the case proceeded herself because emotional imbalance is not
to trial. During trial, the attorney held daily a valid ground for denying admission to the
press conferences, which kept both the attorney bar.
and her client in the public eye. Ultimately,
the accused was found not guilty of the felony (B) Three years ago, it would have been proper
charge. for the professor to keep her opinion
to herself because she is untrained in
Is the attorney subject to discipline? psychology or the science of emotional
illness.
(A) Yes, because the attorney stated that one of
her motives was to gain publicity. (C) Now, the professor may support the law
student’s re-petition because she believes
(B) Yes, because the attorney did not convey that he has regained his emotional balance.
the offer of a lesser charge to her client.
(D) Now, the professor may remain neutral
(C) No, because the attorney competently repre- because she is untrained in psychology or
sented her client. the science of emotional illness.

(D) No, because the client’s complete exonera-

tion at trial was a better outcome than
agreeing to plead guilty to a lesser charge.

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 PRACTICE EXAM 3 321.

Question 5 Question 6

An attorney has a high-profile divorce law The state in which a tax attorney practices
practice in the town in which he resides. Because levies an annual tax on trusts for the benefit of
of his heavy caseload, the attorney often appears minors. Tax returns must be filed, and the taxes
before the four chancery judges of the county must be paid, by March 15; late filing results in
court. One of the chancery judges is getting an automatic penalty of 15%. In mid-January,
married, and he sends a wedding invitation to the trustee of such a trust retained the attorney to
the attorney. The attorney wishes to send the prepare and file a tax return. The trustee heard
judge, as a wedding gift, an imported Italian nothing from the attorney during February, and
machine that makes espresso and cappuccino he became seriously alarmed when the first week
coffee because he knows that the judge loves of March passed with no apparent action from
fine coffee. The coffee machine sells for $200 the attorney. He called the attorney repeatedly
at the town’s best cooking equipment store. The during late February and early March, but each
attorney sent the coffee machine to the judge, time the attorney was in a conference, in court,
and the judge duly made a public report of the or in a deposition. The attorney never returned
gift. any of the trustee’s phone calls. On March 10,
the trustee fired the attorney and hired a certi-
Was it proper for the attorney to send the fied public accountant to do the necessary work.
coffee machine to the judge? She was able to complete the tax return and get
it filed on time.
(A) Yes, because the judge would not be un-
duly influenced by a $200 gift. Is the attorney subject to discipline?

(B) Yes, because the judge made a public report (A) Yes, even though the March 15 deadline
of the gift. had not yet passed.

(C) No, because the gift was not a campaign (B) No, because the attorney had legitimate
contribution, and lawyers should not give excuses for not taking the client’s calls.
other types of gifts to judges.
(C) No, because the March 15 deadline had not
(D) No, because the value of the gift exceeded passed.
$150.
(D) No, because neither the trustee nor the trust
suffered any loss.

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322. PRACTICE EXAM 3

Question 7 (A) Yes, because the retired attorney never

entered into an attorney-client relationship
A district court judge heard through the with the judge.
“courthouse grapevine” that the district attorney
was investigating corrupt practices in the courts (B) Yes, because the retired attorney’s knowl-
and that the investigation focused on some as yet edge bears upon maintaining the integrity
unascertained time in the past. The “rumor mill” of the courts, which takes precedence over
also indicated that several judges and former other ethical considerations.
judges were likely to be indicted for taking
bribes to “fix” cases and to generate business (C) No, because the retired attorney is retired
for certain lawyers. The judge was alarmed at from practice.
this news, and he telephoned a retired attorney,
arranging to meet him for cocktails and dinner. (D) No, because the judge’s disclosures to the
At the restaurant, the judge slipped the maitre retired attorney dealt with past crimes.
d’ a 10-dollar bill to secure seating at a secluded
corner booth. Over dinner, the judge told the
retired attorney that he had accepted bribes in
the past and that he did not know what he should
do in light of the district attorney’s investiga-
tion. The retired attorney advised the judge to
do nothing. The judge picked up the $120 dinner
tab, and the retired attorney thanked him for the
fine meal.

A month later, indictments were handed down

against two sitting judges and three former
judges. The judge was not among them, and
it turned out that the period covered by the
district attorney’s investigation was prior to the
judge’s election to the bench. Six months after
the indictments were announced, a member of
the state appellate court died, and the governor
announced that he was appointing the judge to
serve the remaining three years of the justice’s
unexpired term.

Must the retired attorney report his knowledge

of corruption in office by the judge?

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 PRACTICE EXAM 3 323.

Question 8 proven in plaintiff’s favor. Alas, on August 16,

the defense attorney again showed up alone,
In a trade secret action against a corpora- explaining that the vice president had to make
tion pending in a United States district court, an unexpected trip out of state. After appropriate
the plaintiff’s lawyer gave timely notice that on notice and hearing, the judge ordered that the
July 22 at 9 a.m., he would take the deposition issues of trade secret misappropriation and use
of the corporation’s vice president for manufac- would be deemed proven in plaintiff’s favor. She
turing and marketing. From earlier discovery in also ordered the vice president to pay 60% of the
the case, the plaintiff’s lawyer had good reason plaintiff’s expenses and attorneys’ fees incurred
to believe that the vice president’s testimony because of the failed deposition attempts, and
would prove that the corporation had stolen she ordered the defense attorney to pay the other
and was using the plaintiff’s trade secrets. On 40% of plaintiff’s expenses and attorneys’ fees.
the appointed day, the defense attorney showed
up with no witness; she explained that the vice Was the judge correct in holding the defense
president was a very busy man and had been attorney subject to litigation sanction?
unavoidably detained on a trip to one of the
corporation’s factories in Asia. The plaintiff’s (A) Yes, because the defense attorney violated
lawyer rescheduled the deposition for August 3, the court’s discovery order by showing up
and the defense attorney promised to have the on August 16 without the witness.
witness available that day.
(B) Yes, because the facts show that the defense
On August 3, the defense attorney again attorney acted obstinately and disrespect-
showed up with no witness, explaining that fully in defiance of the judge’s direct order.
he had to take his aged mother to the doctor
that day. The plaintiff’s lawyer rescheduled (C) No, because the facts show that the defense
the deposition for August 14. On August 14, attorney could not control the witness, and
the defense attorney showed up for the deposi- that she was therefore not at fault when he
tion in the company of a nine-year-old boy, failed to show up on August 16.
whom she introduced as the vice president.
Upon questioning by the plaintiff’s lawyer, the (D) No, because when a party or a managing
defense attorney laughingly explained that the agent of a party violates a discovery order,
young boy was the vice president’s son, that he the sanction must be imposed on the party
knew nothing about the case, and that the vice or managing agent, not on the lawyer.
president was unable to attend. At that point, the
plaintiff’s lawyer invited the defense attorney to
accompany him to see the judge to whom the
case was assigned.

After hearing the story, the judge asked the

defense attorney what day and time the witness
would assuredly be available, and the defense
attorney said that August 16 would be good.
The judge then entered a formal order that the
deposition would be taken that day. The judge
also warned that the defense attorney would be
sanctioned if she did not present the witness on
August 16, and that the issues of trade secret
misappropriation and use would be deemed

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324. PRACTICE EXAM 3

Question 9 Question 10

While she was attending law school at night, The State Bar and the State University are
a law student served as a clerk for a judge of the joint sponsors of the State Continuing Legal
county court. During the course of her employ- Education Foundation. The purpose of the
ment, a public interest case came before the foundation is to provide continuing legal educa-
judge. The case was very complicated, and the tion to lawyers and judges in the state. Its board
law student did a lot of research on the case for of directors is composed one-half of members
the judge, submitting a number of memoranda of the legal profession and one-half of university
on issues in the case. The judge always carefully personnel. A prominent judge has been invited
supervised his clerks, and this case was no to serve on the board of directors, and is offered
exception. He was exceptionally pleased with the same modest salary paid to the other board
the care and high quality of the law student’s members.
work. Shortly after the judge handed down his
final judgment, the law student graduated, was Which of the following is correct?
admitted to the bar, and accepted employment
with a prominent local law firm. A few days (A) The judge may serve on the board of direc-
later, the defendant from that case, who lost, tors if it does not interfere with her judicial
appeared at the offices of the law firm. He told duties.
the interviewing attorney that his trial attorney
was terrible. He wants the firm to handle his (B) It would not be proper for the judge to serve
appeal. on the board of directors because to do so
would involve her in the teaching of law.
If the law firm accepts the client, and the
former law student’s supervising attorney asks (C) It would not be proper for the judge to serve
her to handle the appeal, would it be proper for on the board of directors because she would
the former law student to do so? necessarily be fraternizing with lawyers
who had occasion to practice in her court-
(A) Yes, because no confidential information room.
was revealed to the former law student dur-
ing her work on the case for the judge. (D) The judge may serve on the board of direc-
tors, but it would not be proper for the judge
(B) Yes, because the former law student was not to accept the modest salary that is paid to
licensed to practice law when she worked other directors.
on the case for the judge.

(C) No, because the judge must consent.

(D) No, because the former law student was

previously personally and substantially
involved in work on the case.

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 PRACTICE EXAM 3 325.

Question 11 Question 12

An assistant district attorney (“ADA”) has Two cities are located right across the river
been assigned to prosecute a vagrant for petty from one another, in States A and B, respec-
theft and attempted sale of stolen property. The tively. Many people who live in one city work
vagrant’s arrest was the result of information and shop in the other and vice versa. An attorney
provided by a local pawnbroker. The pawnbroker is admitted to practice in State A, but not State
has himself been in trouble with the law on B, and has his law office in State A. When he
prior occasions, but he is not suspected of any is asked to represent a criminal defendant in
present crime. The vagrant is represented by a the Superior Court of State B, he usually (but
public defender. The ADA wants to interview not always) refers the case to a crony who is
the pawnbroker for possible use as a prosecution admitted to practice in State B, but not State A,
witness. and has his law office in State B. Likewise, when
the crony is asked to represent a client in the
Which of the following is correct? Superior Court of State A, he usually (but not
always) refers the case to the attorney. The two
(A) The ADA may interview the pawnbroker attorneys have evolved their mutual arrangement
without the public defender’s consent. in order to provide better service to their respec-
tive clients, and they always tell referred clients
(B) The ADA may interview the pawnbroker about the arrangement.
without the public defender’s consent,
but he would be subject to discipline for Is the arrangement proper?
inquiring about the pawnbroker’s prior
criminal record. (A) Yes, because the attorney is not licensed
in State B, and his crony is not licensed in
(C) The ADA would be subject to discipline if State A.
he interviewed the pawnbroker without the
public defender’s consent. (B) Yes, because the arrangement between the
two attorneys is nonexclusive and is always
(D) The ADA may interview the pawnbroker, disclosed to referred clients.
but only with the public defender’s consent,
and the ADA would be subject to discipline (C) No, because, on the facts given, the referral
for inquiring about the pawnbroker’s prior fee could not be proportionate to the
criminal record. services rendered by the referring attorney,
and there is no indication of joint represen-
tation.

(D) No, because a lawyer is not allowed to

participate in a reciprocal referral arrange-
ment with another lawyer.

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326. PRACTICE EXAM 3

Question 13 Question 14

An attorney was engaged in a partnership law A consumer who bought a defective product
practice for almost 10 years with his sister, who that injured him hired an attorney to represent
then decided to run for judge. She was successful him in a personal injury action against the
in her efforts and was duly sworn in as one large corporation that made the product. As the
of the 15 sitting judges on the district court. consumer and the attorney discussed the case,
According to state venue rules, at least 90% of the consumer stated that he probably would
the cases that the attorney usually handles must not agree to a settlement under $500,000. The
be filed with the district court. When opposing attorney agreed that the claim was worth at least
counsel in one of the attorney’s cases learned that, but felt they would receive a much higher
that the attorney’s sister was a judge, he objected. award if the case went to a jury. Shortly before
The attorney responded that it was his sister’s the trial started, the lawyer for the corporation
duty to uphold the law and no one would receive contacted the consumer’s attorney with a settle-
special favors. ment offer of $150,000. The consumer’s attorney
tried to call his client, but could not reach him.
Is it proper for the attorney to handle such After two hours of trying to reach his client, the
cases and appear before the district court? attorney called opposing counsel and rejected
the offer. At trial, the jury awarded the consumer
(A) No, because an opposing party objected. $1 million.
(B) No, because it creates an appearance of Is the consumer’s attorney subject to malprac-
impropriety. tice liability for his actions?
(C) No, because a lawyer should not appear in (A) Yes, because a lawyer has a duty to keep
a district court where a close relative serves his client informed of all settlement offers.
as one of the judges.
(B) Yes, because decisions to accept or reject
(D) Yes, because the attorney did not suggest settlement offers are to be made by the
that his clients will receive unfair advan- client.
tages because his sister is a judge.
(C) No, because the consumer impliedly autho-
rized the attorney to reject any offer under
$500,000.

(D) No, because the jury award was much

greater than the settlement offer.

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 PRACTICE EXAM 3 327.

Question 15 Question 16

During the course of researching a reply brief, An attorney had an office in a small town
an attorney discovered a case in the controlling located on the extreme western border of the
jurisdiction that seemed to be right on point state in which he was licensed to practice. The
on one of the key issues involved in the case attorney received a retainer from a client, with
on which she was working. Although much of the agreement that the attorney would use funds
the dicta in the case seemed to favor the attor- from the retainer for such things as filing fees
ney’s client, one critical sentence in the holding when they came due. There was no federally
clearly put the court behind the position asserted insured bank or savings institution in the small
by opposing counsel. However, the opposing town in which the attorney’s office was located.
counsel had done a slipshod job of researching The nearest such institution in the state was
the issues and had failed to find the case and to located in the county seat, which was over 60
cite it in his brief. The attorney decided to cite miles away from the attorney’s office and where
the case in her reply brief, but she cited the case the attorney and the client resided. Therefore,
as favoring her client by quoting much of the the attorney decided, with the client’s consent, to
dicta and deliberately omitting the key sentence put the client’s money in his client trust account
in the holding. The attorney filed the reply brief in a bank in a medium-sized city located just
with the court and sent a copy to the opposing across the state line in a neighboring state. The
counsel, who she knew often bragged about account was fully insured by the federal govern-
not having read a case since law school. The ment, but was not an interest-bearing account.
attorney was also aware that this judge’s clerks The attorney is not licensed to practice law in
tended to be overworked and so did not always that state.
read all the cases cited by lawyers in their briefs.
Therefore, she hoped that the negative aspects Was it proper for the attorney to place the
of the case might slip by unnoticed by the judge client’s money in an account in the neighboring
and opposing counsel. state?

Is the attorney subject to discipline? (A) Yes, because retainer fees belong to the at-
torney and not to the client.
(A) Yes, because a lawyer has a duty to cite all
opposing cases accurately and objectively. (B) Yes, because the client consented to the
deposit in the neighboring state.
(B) Yes, because the attorney is attempting to
mislead the tribunal. (C) No, because the attorney is not licensed to
practice in the neighboring state.
(C) No, because a lawyer has a duty to present
cases in the light most favorable to her (D) No, because the funds were not placed in an
client. interest-bearing account.

(D) No, because a lawyer has no duty to

educate, and the attorney fulfilled her duties
to the court and the opposing party by
citing the case.

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328. PRACTICE EXAM 3

Question 17 Question 18

A man was charged with first degree murder. The plaintiff in a personal injury suit arising
It is claimed that he captured his victim, dragged out of an automobile collision asserted that
her into dense woods, and stabbed her with he had the right-of-way to enter the intersec-
a knife. The accused has pleaded not guilty. tion where the accident occurred. The defen-
During the prosecution’s case-in-chief, one of dant claimed otherwise, but the plaintiff told
the prosecutor’s witnesses testified that he had his attorney that there was a witness present
seen the accused’s car near the scene of the who would be able to verify his version of the
crime shortly before the murder. This courthouse accident. The plaintiff’s attorney obtained a copy
has no private room set aside for conferences of the police report on the accident, but the name
between defendants and their counsel. Thus, at of the witness was not contained in the report.
the next recess, the accused and his attorney held The plaintiff’s attorney contemplated running an
a hurried, whispered conference in the hallway, ad in the newspaper or hiring an investigator to
during which the attorney asked the accused find the witness, but she reasonably concluded
why he had not told him about driving around that her client’s testimony ought to be strong
that area. The accused replied that he had not enough to win the case. The case went to trial,
realized that anyone had seen him. and the jury found for the defendant.

Unbeknownst to the accused and his attorney, Is the plaintiff’s attorney subject to discipline
the prosecutor was standing nearby and for failure to try to find the witness?
overheard their whispers.
(A) Yes, because she failed to properly prepare
Which of the following statements is correct? the case.

(A) The prosecutor must seek the court’s per- (B) Yes, because her client lost.
mission to withdraw as trial counsel and
testify to what she heard. (C) No, because she reasonably believed that
her client’s testimony would be sufficient.
(B) The prosecutor must ignore what she heard
and proceed with the case in the normal (D) No, because the name of the witness was
manner. not in the police report.

(C) The defense attorney must seek the court’s

permission to withdraw as trial counsel and
inform the trial judge in chambers what the
accused said.

(D) The defense attorney must seek the court’s

permission to withdraw as trial counsel,
but not inform the trial judge as to what the
accused said.

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 PRACTICE EXAM 3 329.

Question 19 Question 20

A newspaper reporter writes a semi-humorous After a major airplane crash in the vicinity
gossip column in which she reports on the vices of an affluent island town, in which 122 passen-
and victories in the private lives of prominent gers and crew were killed, the town’s lawyers
citizens. Among her favorite targets are judges swarmed like locusts to get a “piece of the
and lawyers. Over the years, the reporter and a action” and the potentially huge contingent fees
local attorney have worked out a tacit arrange- that were likely to arise from the case. Inter-
ment. Every now and then in her column, the ested in fees himself, but also rather disgusted
reporter gives glowing praise to the attorney’s at the performance of some of his colleagues of
legal talents and recommends him to her the bar, one attorney placed an ad in the town’s
readers. In return, the attorney calls the reporter weekly legal newspaper, whose readership was
whenever he learns a truthful, juicy tidbit about almost entirely lawyers. The ad suggested that
another lawyer or judge. any lawyers representing plaintiffs in the airline
crash matter contact him in order to consoli-
Is the attorney’s conduct proper? date lawsuits against the airline, and that legal
fees would be divided in proportion to the work
(A) Yes, because the information that he gives performed. The ad was signed by the attorney
the reporter is truthful. and indicated his office address and telephone
number.
(B) Yes, because the information that he gives
the reporter is not the subject of a confiden- Was it proper for the attorney to place such an
tial relationship with a client. advertisement?
(C) No, because a lawyer is subject to discipline (A) Yes, because the ad was not misleading.
for demeaning members of the legal profes-
sion. (B) Yes, because the lawyers will split the fees
in proportion to work done.
(D) No, because a lawyer should not give
something of value in return for a recom- (C) No, because the attorney is soliciting
mendation. business.

(D) No, because the ad is in bad taste.

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330. PRACTICE EXAM 3

Question 21 Question 22

A sales manager testified before a federal An attorney limits her law practice to the
grand jury that was investigating price-fixing representation of plaintiffs in actions for medical
in the automobile tire industry. Ultimately, the malpractice. She has developed a standard
grand jury indicted the sales manager for price- employment contract to use with all clients
fixing, a felony under the Sherman Act. After who desire a contingent fee arrangement. The
his indictment, the sales manager sought to hire contract requires the client to pay in advance
a prominent attorney to represent him at his the first $500 of litigation expenses (which is a
criminal trial. The sales manager is a middle reasonable sum in the ordinary medical malprac-
class business executive with enough savings tice case), and states that the attorney’s fee shall
to pay for private counsel. He told his attorney be 20% of any amount recovered without going
in confidence that he had lied to the grand jury to trial, 30% of any amount recovered if the case
about several meetings he had had with competi- goes to trial, and 35% of any amount recovered
tors. Furthermore, he told her that he wanted to if the case is appealed. A client signed the attor-
plead not guilty to the criminal charge and that ney’s standard form contract, and after putting
he intended to testify at trial as he did before the in only 10 hours’ work on the client’s case, the
grand jury. attorney was able to work out a settlement agree-
ment in which the client received $10,000 from
Which of the following would be proper for the defendant’s malpractice insurance carrier.
the attorney to do in this situation? The client was delighted with the settlement,
but he is unhappy with having to pay 20% of it
(A) Decline to represent the sales manager. ($2,000) to the attorney for so few hours’ work.
(B) Agree to represent the sales manager and With respect to the clause of the attorney’s
tell no one what he told her. standard form contract that requires the client
to pay in advance the first $500 of litigation
(C) Inform the sales manager that unless he expenses, which of the following is correct?
pleads guilty to the criminal charge, she
will tell the prosecutor about his false testi- (A) The clause is proper.
mony before the grand jury.
(B) The attorney must delete the clause because
(D) Decline to represent the sales manager and it is an effort to impose a uniform provision
inform the prosecutor about his false testi- on all clients, irrespective of their particular
mony before the grand jury. needs and situations.

(C) The attorney is subject to discipline for

using the clause because a lawyer is
required to advance reasonable litigation
expenses to contingent fee clients.

(D) The attorney is subject to discipline

for using the clause because clients are
required to pay litigation expenses as they
are incurred.

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 PRACTICE EXAM 3 331.

Question 23 Question 24

An airline passenger was involved in an Before a judge was elected to the bench,
aviation mishap. The airline company has she and her law partner purchased a piece of
admitted liability and has settled with 10 other property to be held in co-tenancy by the judge
persons involved in the mishap for amounts and her law partner. After the judge was elected
ranging between $120,000 and $150,000. The to the bench, she agreed to pay her law partner
passenger’s injuries are very similar to those an annual fee to manage the property because
suffered by the persons with whom the airline her own time would be severely limited by her
has settled. The passenger received a settlement judicial duties. The judge and her law partner
offer of $135,000 from the airline company. meet every three months to discuss the status of
Upon receiving the offer, the passenger decided the property. The law partner sometimes appears
to employ counsel to determine if the offer was as an attorney in the judge’s courtroom.
a fair amount, and generally to read over the
settlement papers and the release that the airline Was it proper for the judge to make this
asked the passenger to sign to get the $135,000. arrangement with her law partner?
The passenger went to the offices of a local
attorney, bringing the settlement papers and (A) Yes, because the judge acquired the prop-
release with her. She asked the attorney what erty before she became a judge.
his hourly fee for reading the papers would be.
The attorney told the passenger that she had a (B) Yes, because the judge made arrangements
personal injury case and that his standard fee for to ensure that her judicial duties would not
personal injury cases was 30% of any settlement suffer.
or judgment received by the plaintiff.
(C) No, because judges should not engage in
Is the attorney subject to discipline? remunerative outside enterprises.

(A) Yes, because the attorney’s fee bears no (D) No, because the law partner appears in
rational relationship to the time and effort cases before the judge’s court.
required to perform the work requested by
the client.

(B) Yes, because 30% is an unreasonable

contingent fee percentage.

(C) No, because contingent fees are appropriate

in personal injury cases.

(D) No, because the passenger was free to

obtain counsel other than the attorney.

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332. PRACTICE EXAM 3

Question 25 Question 26

An attorney represented a defendant in a felony An attorney placed an advertisement in a

case that charged him with intentional evasion of newspaper of general circulation published in the
over $9 million in state income tax. The accused city in which she practiced. The ad contained
allegedly earned the unreported income from the attorney’s name, office address, telephone
selling child pornography. The state’s criminal number, and the following additional, truthful
procedure law requires a unanimous jury verdict information: (1) “Attorney is a graduate of State
to convict in a felony case. Midway through the University Law School”; (2) “Attorney has an
prosecutor’s case-in-chief, the defense attorney M.B.A. from the Graduate School of Business of
instructed one of the accused’s employees to State University”; and (3) “Attorney is the only
attend the trial daily, to sit in the spectator section lawyer in town who speaks fluent Spanish.”
as close as possible to the defense counsel table,
and to put the “evil eye” on a particular juror Is the advertisement proper?
to intimidate him. The employee, a wicked-
looking man with a jagged scar down the side (A) Yes, the ad is proper.
of his face, attended every court session and
stared constantly with cold, squinting eyes at the (B) Yes, because the ad was published in a
juror. One day, when no one but that juror was newspaper in the city in which the attorney
looking, the employee pointed his hand like a practiced.
pistol directly at the juror’s head and pretended to
shoot by moving his thumb downward. Then the (C) No, because the ad is self-laudatory.
employee smiled an evil smile and continued to
stare. The juror was too frightened to tell anyone, (D) No, because an M.B.A. is not law-related.
but he endured the torment day after day. Finally,
the case was submitted to the jury, and the juror
joined the rest of the jurors in returning a prompt,
unanimous verdict of guilty.

Is the defense attorney subject to criminal

liability for what the employee did?

(A) No, the attorney may be subject to sanction

by the court or discipline by the bar, but not
criminal liability.

(B) No, because the juror was not intimidated;

he voted to convict along with the rest of
the jury.

(C) No, because the facts do not state that

the attorney gave the employee money,
or something else of value, to stare and
gesture at the juror.

(D) Yes, because the attorney induced the

employee to intimidate the juror for the
purpose of influencing the jury verdict.

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 PRACTICE EXAM 3 333.

Question 27 Question 28

An attorney was employed to represent a man A married couple experienced continuing

at his trial for treason; the man was charged marital difficulties and, being unable to resolve
with smuggling top secret military informa- their problems, decided to divorce. The wife
tion to a foreign government. The attorney had retained an attorney, who filed papers on the
reason to suspect that some of the prosecution’s husband. Shortly after he was served, the
witnesses were paid liars. Therefore, with his husband telephoned his wife’s attorney and
client’s consent, the attorney hired to assist him suggested that the matter could be resolved
in the defense a psychologist whose specialty amicably. The wife’s attorney asked the husband
is the behavior of liars. The client consented to if he was represented by counsel. The husband
the attorney’s advancing the psychologist’s fee replied that he was not. The wife’s attorney
as a part of the expenses of litigation. At the strongly urged the husband to retain a lawyer
trial, the psychologist sat with the attorney at the to represent him and to safeguard his interests,
counsel table. She watched the witnesses testify, but the husband insisted that he did not need a
and she advised the attorney when she believed lawyer. A few weeks later, after ascertaining
that a witness was lying and ought to be pursued that the husband still had not retained counsel,
on cross-examination. Most of the time, the the wife’s attorney sent the husband a proposed
attorney followed the psychologist’s advice, but settlement dividing the marital property. There
sometimes he did not. Ultimately, the client was were spaces at the bottom for both the husband
convicted and sent to prison for 20 years. and the wife to sign, but the copy sent to the
husband was unsigned by the wife. In his
Which of the following propositions is cover letter to the husband, the wife’s attorney
correct? indicated that the husband could sign the settle-
ment agreement, which the attorney character-
(A) The attorney is subject to discipline for al- ized as being fair and equitable. However, the
lowing a third party to interject herself into attorney’s letter also stated that he could not
the relationship between him and his client. advise the husband as to whether he should
sign, and strongly urged the husband to obtain
(B) The attorney is subject to discipline for independent counsel to review the papers before
advancing the psychologist’s fee as a part of signing them.
the expenses of litigation.
Were the attorney’s actions in handling the
(C) The attorney is subject to discipline for divorce proper?
allowing a nonlawyer to sit at the counsel
table and to participate in his legal repre- (A) Yes, because the attorney did not give the
sentation of a criminal defendant. husband legal advice.
(D) The attorney is not subject to discipline (B) Yes, because the attorney urged the
because he did not give up his discretion to husband to obtain representation.
the psychologist, as shown by the fact that
he did not always follow her advice. (C) No, because the attorney did not have the
wife sign the settlement papers before
sending them to the husband.

(D) No, because the attorney should have

required that the husband have the papers
reviewed by a lawyer.

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334. PRACTICE EXAM 3

Question 29 Question 30

A car owner is insured under an auto liability Three months from now, a local judge will be
policy issued by a nationally known insurance up for reelection. His opponent is a bright and
company. The policy requires the insurance ambitious young attorney in the prosecutor’s
company to provide a lawyer to defend the car office. Due to the press of his judicial duties,
owner, and it requires the car owner to cooperate the judge has not paid much attention to the
in the defense. The car owner had an accident upcoming election. One afternoon an old law
and was sued. In a sworn statement to the insur- school friend visits him in his chambers. She
ance company’s investigator, the car owner told convinces him that he must get busy if he hopes
a story that showed he was clearly not at fault. to defeat his opponent. The friend frequently
Based on that story, the insurance company represents clients in the judge’s court, and he
rejected plaintiff’s offer to settle the case for a trusts her judgment and ability; thus, he agrees
modest sum. The insurance company hired an to have her serve as chairperson of his reelec-
attorney to represent the car owner at the trial tion campaign committee. In her capacity as the
of the case. Shortly before trial, the car owner chairperson of the judge’s reelection campaign
told the attorney in confidence that he had lied committee, the friend contributed $200 of her
to the investigator, and he recounted facts that own money to the campaign fund. She also
showed he was clearly at fault in the accident. urged other lawyers who appeared in the judge’s
The attorney realized that under the applicable court to make contributions to his campaign
state law, the car owner’s falsehood was a breach fund, and further urged those lawyers to allow
of the “cooperate in the defense” clause, and that their names to be listed in a half-page newspaper
it relieved the insurance company of any further advertisement in favor of the judge’s reelection.
duties to the car owner. Finally, the friend arranged for the taping of
a television advertisement in which the judge
At this juncture, what must the attorney do? pledged never to believe the sworn testimony of
a criminal defendant when there was conflicting
(A) Promptly advise the insurance company of sworn testimony from a law enforcement officer.
the situation and carry out its instructions
as to how to dispose of the matter. Which of the following was improper in the
context of the judge’s campaign for reelection?
(B) Promptly advise the car owner that his best
interests will be served by reverting to the (A) Contributing $200 to the judge’s campaign
story he told originally to the insurance fund.
investigator.
(B) Urging other lawyers who appear in the
(C) Promptly seek the court’s permission judge’s court to make contributions to the
to withdraw from the matter, without judge’s campaign fund.
revealing the car owner’s confidential state-
ment to anyone. (C) Urging other lawyers who appear in the
judge’s court to allow their names to be
(D) Promptly advise the car owner of the legal listed in a half-page newspaper advertise-
consequences of his false statement, and ment in favor of the judge’s reelection.
continue representing him and the insur-
ance company in the matter as best he is (D) Creating the television advertisement.
able in the circumstances.

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 PRACTICE EXAM 3 335.

Question 31 Question 32

An attorney represented a married couple Two attorneys, a brother and sister, were
for many years, handling such matters as wills, licensed to practice in a province in Canada. The
real estate closings, and the occasional lawsuit. sister moved to the United States and passed a
The wife died suddenly, and shortly after her state bar examination. She opened a law office
funeral the attorney paid a visit to the husband, in that state and had letterhead stationery printed
wishing to pay her respects as a friend as well as which contained the names of both the sister and
his attorney. The attorney found the husband in brother, followed by the words “Partners, Attor-
an obviously drunken state. He told the attorney neys at Law.”
that he just could not go on without his wife and
that he planned to commit suicide that evening. Is it proper for the sister to use such letter-
He told the attorney not to do anything to try to head?
stop him. Using a ruse to distract the intoxicated
husband, the attorney called the police, who (A) Yes, because United States courts have no
promptly took the husband to the psychological jurisdiction over Canadian lawyers.
emergency receiving area of the local hospital.
(B) Yes, because both the sister and the brother
Was the attorney’s conduct proper? are licensed to practice law.

(A) Yes, because her client was drunk. (C) No, because the letterhead indicates that the
sister is aiding the unauthorized practice of
(B) Yes, because her client proposed to commit law.
suicide, which act would result in his death
or substantial bodily harm. (D) No, because Canadian lawyers must swear
an unconstitutional oath of loyalty to a
(C) No, because she revealed a client’s confi- foreign monarch.
dences to the police.

(D) No, because she disobeyed a clear directive

of her client.

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336. PRACTICE EXAM 3

Question 33 have to pay anything for the legal defense if he

“played the game straight” and did not implicate
An attorney was formerly employed by a the “friends” in the cocaine caper. The accused
branch office of the Environmental Protection consented to the conditions and to the third party
Agency (“EPA”) as government counsel. In this payment of his legal fees. In due course, the man
capacity, he acted as chief counsel in several was substituted in as defense counsel. Shortly
suits brought by the EPA involving chemical before trial, the prosecutor offered the accused
dumping into public waterways. Two years after an attractive plea bargain—a mere six months in
leaving the employ of the EPA, the attorney jail in exchange for a guilty plea, an identifica-
was retained to represent a large corporation tion of the persons for whom the accused was
in a suit brought by the EPA alleging viola- transporting the cocaine, and testimony against
tions of certain EPA regulations regarding the those persons. The man solemnly advised the
dumping of chemical wastes. While with the accused to reject the plea bargain, saying there
EPA, the attorney was never directly involved would be dire consequences. The accused did
in a case concerning this particular corporation. reject the plea bargain. Thereupon the prosecutor
A different EPA branch office had exclusive moved to disqualify the man as defense counsel
responsibility for the drafting, promulgation, and on the ground that he was being paid by an
enforcement of the regulations in question. unidentified third party and that the third party
was unduly interfering with the accused’s consti-
Which of the following statements is correct? tutional right to effective assistance of counsel.
(A) The attorney may represent the corpora- Is the man subject to disqualification?
tion, but only with the consent of the EPA.
(A) Yes, because in a criminal case it is unlaw-
(B) The attorney may represent the corporation, ful for a private criminal defense lawyer to
whether or not the EPA consents. accept compensation from an outsider for
his legal services.
(C) If the attorney represents the corporation
without the consent of the EPA, he will be (B) Yes, because both the prosecutor and the
subject to discipline. judge have a duty to protect the defendant’s
constitutional right to the effective assis-
(D) If the attorney represents the corporation, tance of legal counsel.
he will be subject to discipline, even if the
EPA consents to the representation. (C) No, because the accused consented to the
fee arrangement after having been informed
Question 34 of the conditions on which it was offered.
A criminal defendant is facing trial for (D) No, because the prosecutor has no right to
the unlawful possession of a large quantity interfere with a criminal defendant’s choice
of a controlled substance—specifically, 400 of counsel.
kilograms of cocaine. The accused originally
asserted that he could not afford to pay a lawyer,
and the court arranged for him to be represented
by a public defender. Later, the accused was
visited in jail by a man who identified himself
as a skilled criminal defense lawyer who had
been hired by the accused’s “friends” to defend
him. The man said that the accused would not

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 PRACTICE EXAM 3 337.

Question 35 Question 36

An amateur inventor comes to an attorney Two attorneys who are law partners are
with an invention he wants to patent. The contemplating incorporation of their law
inventor explains that he and a competitor have practice. The attorneys believe that by incor-
been racing one another to come up with the porating their law practice, they will be able
ideal cleaning solution. If the inventor’s compet- to convey an interest in the corporation to
itor were to find out that the inventor was at their children; may avoid liability to clients
the patent stage, and worse, if he found out the for malpractice; and will achieve some desir-
inventor’s formula, the inventor would be ruined. able benefits when they die—specifically, that a
The attorney, a trained and certified patent fiduciary representative of their estates may hold
attorney, agrees to represent the inventor in the stock in the corporation for a reasonable time
patent process. The invention involves complex during administration, and ultimately that their
chemical formulae, and the attorney’s particular corporate stock can pass to their children.
area of expertise is electronic devices. However,
having worked with inventions of all types, she With respect to the proposed incorporation,
has no doubt that she can properly shepherd the which of the following statements best describes
solution through the patent process. In putting what the two attorneys may properly do?
together the necessary paperwork, the attorney
asks two associates in her firm who hold (A) They may incorporate their law practice
chemistry degrees to help her out on the project. and convey an interest in the corporation to
In due time, the inventor’s product receives a their children.
patent. The total bill for legal fees was $60,000,
which was reasonable for the work done. (B) They may incorporate their law practice
When the attorney received the inventor’s final and thus avoid liability to clients for
payment, she decided to give the two associates malpractice.
each a $10,000 bonus from the fee.
(C) They may incorporate their law practice
Are the attorney’s actions proper? and when they die, a fiduciary representa-
tive of their estates may hold the stock in
(A) Yes, because with the aid of her associates, the corporation for a reasonable time during
she was competent to handle the matter. administration.

(B) Yes, because the division of the fee was in (D) They may incorporate their law practice
proportion to the work performed by the and when they die, their corporate stock
two associates. can pass to their children.

(C) No, because the attorney shared informa-

tion about the case with the two associates.

(D) No, because the inventor did not consent to

the splitting of the fee with the two associ-
ates.

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338. PRACTICE EXAM 3

Question 37 Question 38

The driver of a car and his passenger were An attorney attended a local law school
injured as the result of a collision with a bus. under an honors program, whereby accepted
They believe the bus driver was entirely at fault, students who had an undergraduate grade
and they want to bring a negligence action point average of 3.8 or higher receive a full
against the bus company. They engage in an tuition-paid scholarship. While in law school,
initial consultation with a local attorney. In the the attorney completed the requirements for a
course of the consultation, the attorney realizes taxation concentration, for which she received a
that the bus at issue belongs to a bus company certificate at graduation. She passed her state’s
that the attorney’s firm is representing in an bar examination, and she currently limits her
unrelated matter. The attorney interrupts the practice to tax law. She is drafting an advertise-
conversation, explains this potential conflict of ment for her legal services. Her current draft
interest, and obtains the written consent of both states that: she is an honors graduate of the local
the driver and passenger to represent them. law school; she is a certified tax specialist; she
practices only tax law; and she likely can save
Which of the following is not true? clients money on their federal and state income
taxes.
(A) The attorney may not represent the car’s
driver and passenger because he has not The current draft of the advertisement is
obtained the written consent of the bus improper for which of the following reasons?
company.
(A) A lawyer may specialize, but may not
(B) The attorney may not represent the car’s claim to be a certified specialist in a par-
driver and passenger because he did not ticular field of law.
inform the passenger that he may have a
cause of action against the car driver. (B) The ad is undignified and may cause
readers to lose respect for the legal profes-
(C) The attorney may represent the car’s driver sion.
and passenger.
(C) The reference to tax savings is likely to
(D) The attorney may appear on the bus create unjustified expectations about the
company’s behalf at a court hearing that results the attorney can achieve.
afternoon.
(D) The ad contains false and misleading infor-
mation.

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 PRACTICE EXAM 3 339.

Question 39 Question 40

The Department of Children’s Services An attorney is representing a client. Judgment

(“DCS”), a state agency, has removed a woman’s at the trial court is against the client. The client
children from her home and is attempting to wants to appeal the case. The appellate court
terminate her parental rights. The woman retains rules provide a 60-day deadline for the filing
an attorney to fight DCS’s actions. Prior to the of appeals, and no exception is ever granted.
first hearing on the matter, a lawyer from DCS During the first 30 days of the period, the
contacted the woman’s brother to set up an inter- attorney was frantically busy in his office on
view. The lawyer told the brother that he wanted other matters, and he had no chance to file the
to talk to him about his sister, and that the inter- appeal. Then, during the second 30 days, he
view would last for about one hour. The brother, went on vacation and simply forgot to file the
who is childless, had never had any contact with appeal. The trial court’s error was so obvious
DCS before, and did not know what his duties that the appellate court would undoubtedly have
were. He told the lawyer he would get back to reversed the case and entered judgment in the
him. The brother then called his sister’s attorney. client’s favor.
He told her that he does not want to talk to DCS
because he is afraid he might inadvertently Which of the following is correct?
say something that will hurt his sister’s case.
He asked his sister’s attorney how he should (A) The attorney is both subject to discipline
proceed. She advised him simply to refuse the and liable for malpractice.
interview, because he was not required to talk to
them and his sister would be better off if he did (B) The attorney is neither subject to discipline
not. nor liable for malpractice.

Is the attorney subject to discipline? (C) The attorney is subject to discipline, but he
is not liable for malpractice.
(A) Yes, because she is attempting to secure the
noncooperation of a witness. (D) The attorney is liable for malpractice, but
he is not subject to discipline.
(B) Yes, because she gave advice to an unrepre-
sented party.

(C) Yes, because she did not advise the brother

to seek the advice of independent counsel.

(D) No, because the brother is her client’s

brother and he did not want to hurt her
case.

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340. PRACTICE EXAM 3

Question 41 Question 42

A basic tenet of the professional responsibility An attorney represents a man who has pleaded
of lawyers is that every person in our society guilty to a burglary charge. The accused told
should have ready access to the independent the attorney during one of their confidential
professional services of a lawyer of integrity and conversations that this is the fourth time he has
competence. One way of fulfilling this responsi- been busted for burglary—one other time in
bility is by accepting court appointments. this state and two times in the neighboring state.
The accused could be facing a mandatory 5-10
In this regard, which of the following state- years in prison as a repeat offender, but he and
ments is correct? the attorney are hoping that his pleading guilty
will result in a shorter sentence. Unknown to
(A) A lawyer may decline representation be- the attorney or the accused, a glitch in the state
cause a client or a cause is unpopular. computer files resulted in a pre-sentencing report
that did not pick up either the accused’s in-state
(B) A lawyer may decline representation when or out-of-state prior convictions. At sentencing,
there is adverse community reaction. the judge states, “Normally, I throw the book
at young men like you who have no respect for
(C) A lawyer may decline representation if the property of others. However, because I see
the intensity of his personal feelings will you have no prior criminal record, I think you
impair his effective representation of a deserve another chance. I sentence you to two
prospective client. years’ probation and 300 hours of community
service.” Both the attorney and the accused
(D) A lawyer may decline representation in remain silent.
favor of accepting the representation of a
paying client. Is the attorney subject to discipline?

(A) Yes, because failure to speak out when one

knows that the court is operating on false
information is the equivalent of affirmative
misrepresentation.

(B) Yes, because this is a sentencing hearing

rather than a trial.

(C) No, because the mistake did not originate

with the attorney or the accused.

(D) No, because the attorney could not reveal

the confidential information even if he had
been asked directly.

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 PRACTICE EXAM 3 341.

Question 43 Question 44

An attorney represents a client who is a writer An attorney seeks new group and prepaid
and producer of Broadway stage plays. This legal service organizations (such as businesses,
morning the client telephoned the attorney with unions, student organizations, churches, fraternal
great news—a famous actor has agreed to star in organizations, and the like) as clients. For that
his new stage play. The client stated that with this purpose, the attorney hired an advertising
famous actor in the lead, the play is certain to be agency to design and place radio, television, and
a long-running blockbuster. The client instructed print media advertisements that will lure such
the attorney to tell no one, because the informa- clients. The attorney agreed to compensate the
tion was not public yet, and asked the attorney advertising agency for its services by paying
to draft the necessary papers. After drafting the it 3% of the legal fees that he earns during the
legal papers as the client requested, the attorney first two years of representing new clients who
telephoned her friend, who owns one of the best come to him because of the agency’s advertise-
theaters on Broadway. The attorney told her friend ments. The advertising agency does a great job,
that she had a tip, but it would cost her $5,000. creating high profile, memorable advertisements
The friend agreed to pay the attorney $5,000 for that are truthful, not misleading, and identify
the tip, and the attorney then told her friend to the attorney as the person responsible for the
make a deal with her client to run his new play. content. The ads generated a tremendous amount
The attorney stated that she could not explain how of new business for the attorney.
she knew this, but to trust her when she said that
even at a low rent her friend would make millions Is this arrangement proper?
on the play because it is going to be a long-running
blockbuster. The friend promptly made the deal (A) No, because it is an improper fee split with
with the client, and paid the attorney the $5,000. nonlawyers.

Is the attorney subject to civil liability to her (B) No, because it is essentially a payment for
client for selling the tip to her friend? luring clients.
(A) No, because the attorney did not reveal (C) Yes, because the advertisements are truthful
her client’s confidential information to her and not misleading.
friend; indeed, the attorney told her friend
that she could not disclose how she knew (D) Yes, because the attorney was identified in
that her client’s play would be a long-run- the advertisements as the person respon-
ning blockbuster. sible for their content.
(B) No, because the client was not harmed by
what his attorney told her friend; in fact, the
client benefited by getting one of the best
theaters at a low rent.
(C) Yes, because the attorney profited by
$5,000 from trading on her client’s confi-
dential information. She can be ordered to
disgorge her profit to her client.
(D) Yes, but only if the client was harmed by
his attorney’s unauthorized disclosure to her
friend.

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342. PRACTICE EXAM 3

Question 45 Question 46

An attorney who is a member of the state bar An attorney is a fully licensed member of
and a judge who sits on the district court set up the state bar, but she is a rather junior associate
a probate workshop. The announced purpose of with a prominent law firm that handles many
the workshop was to educate laypersons as to securities law matters. The attorney interviewed
probate procedures, and thereby enable them to a client who brought an exceedingly complex
file their own papers and avoid the expense of securities matter to the firm. Although the
obtaining counsel for the probate process. The attorney was highly competent, a couple of
tuition was a modest $50 per student, which points in the client’s complex case were beyond
barely covered the expenses of books and forms her range of experience. Therefore, she consulted
provided to the students. The attorney and one of the firm’s senior partners regarding these
the judge donated their time and received no complicated issues. The attorney did not obtain
remuneration. Each student was required to sign her client’s consent before consulting with the
a paper stating that the $50 tuition fee estab- senior partner, and in the course of the consulta-
lished an attorney-client relationship between tion, the attorney revealed a client confidence.
the lawyer conducting the workshop and the However, the attorney did not reveal her client’s
students. The paper further stated that all identity. The senior partner gave her excellent
lawyers connected in any way with the workshop advice on how to handle the matters based upon
were not liable for any damages that might be his 30 years of experience in securities law. The
incurred by students as a result of pro se filings attorney continued to handle the client’s case and
made in accordance with, or at variance from, brought it to a successful conclusion.
the instructions provided during the workshop.
The paper was signed by the attorney and the Was the attorney’s conduct proper?
judge.
(A) Yes, because she kept the identity of her
Is the attorney subject to discipline? client secret when she consulted the senior
partner.
(A) Yes, because she has participated in the
forcing of an attorney-client relationship (B) Yes, because she consulted with a lawyer
upon the students. in her own firm who had no reason to be
screened from the case.
(B) Yes, because a lawyer may not limit her
malpractice liability by contract. (C) No, because she did not obtain her client’s
consent.
(C) No, because the attorney is helping the
public to avoid excessive legal fees through (D) No, because she revealed a client confi-
her participation in the workshop. dence to the senior partner.

(D) No, because the clients agreed to the

contract as a precondition for obtaining the
benefits offered by the workshop.

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 PRACTICE EXAM 3 343.

Question 47 Question 48

A title insurance agent, in serving his An attorney knows that the statute of limita-
customers, routinely fills in the blanks in tions on her client’s claim has run. However, the
standard form documents that are prepared by statute of limitations is an affirmative defense
lawyers. These documents include warranty that the defendant in the case would waive if she
deeds, quitclaim deeds, mortgages, releases failed to plead it. The attorney’s client is willing
of mortgages, affidavits as to debts and liens, to incur the legal fees and court costs of filing
lien waivers, and the like. On occasion, when the lawsuit, and understands the risks.
his customers specifically ask, he advises
them about the meaning and legal effect of the What may the attorney do?
technical language used in the forms.
(A) File the suit because her client is willing to
Which of the following constitutes the incur the legal fees and court costs.
unauthorized practice of law by the title insur-
ance agent? (B) File the suit but inform the court that the
statute of limitations has run.
(A) Filling in the blanks on warranty deeds and
quitclaim deeds. (C) Not file the suit unless her client consents to
disclose to the court the fact that the statute
(B) Filling in the blanks on affidavits as to of limitations has run.
debts and liens and lien waivers.
(D) Not file the suit as it is now a frivolous
(C) Advising customers, at their request, claim.
about the meaning and legal effect of the
technical language used in the forms.

(D) Filling in the blanks on mortgages and

releases of mortgages.

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344. PRACTICE EXAM 3

Question 49 Question 50

An attorney and a real estate broker are Over the past year, a local judge was paid for
friends. The real estate broker is of the opinion teaching a course in advanced trial practice at a
that the attorney is one of the best real estate seminar for practicing lawyers. The judge also
lawyers in the community, and she recommends wrote an article about fly fishing for a national
him to those persons seeking a lawyer to close magazine, served as the weekend manager at a
real estate transactions. The attorney needs the local antiques store, and drafted a will for her
business and appreciates the real estate broker’s aged father.
recommendations. The attorney has given the
real estate broker some of his business cards Which of the judge’s activities was improper?
to give to individuals seeking a real estate
lawyer. Currently, the attorney does not pay the (A) Teaching the course in advanced trial prac-
real estate broker a referral fee. However, the tice.
attorney feels guilty for accepting the much-
needed business and giving nothing in return. (B) Writing the article about fly fishing.
He has been considering a more formal arrange-
ment whereby he would pay the real estate (C) Serving as the weekend manager at a local
broker a modest $100 referral fee. In addition, antiques store.
he has been considering taking the real estate
broker and her husband on a European vacation (D) Drafting the will.
with him as a way of expressing his appreciation
for her past referrals.

Which of the following is correct?

(A) The attorney may represent clients referred

by the real estate broker only if he contin-
ues his current practice of not paying the
real estate broker a referral fee.

(B) The attorney properly gave the real estate

broker some of his professional business
cards to give to individuals seeking a real
estate lawyer.

(C) The attorney may take the real estate broker

and her husband on the European vacation
as a way of expressing his appreciation for
her referrals.

(D) The attorney may pay the real estate broker

the modest $100 referral fee.

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 PRACTICE EXAM 3 345.

Question 51 Question 52

For many years, an attorney has represented a An attorney works full-time for the United
wealthy building contractor in a wide variety of States Department of Agriculture’s Forest
legal matters, including disputes with suppliers Service. She is assigned to a particular region
and customers. The contractor is a contentious within State A, and both her office and home
man; indeed, he is the attorney’s most lucra- are in State A. She went to law school and is
tive client. The contractor built a single-family admitted to practice in State B; she is not a
home for a married couple. When the contractor member of the bar in any other state. Her work
finished, the couple confronted him with a for the Forest Service does not require her to
list of 289 items that they claimed were either litigate, mediate, or arbitrate claims before any
construction defects or uncompleted tasks. tribunal. She is strictly an office lawyer, and
The couple refused to pay the contractor the most of her workday is spent advising Forest
final 25% installment under their construction Service managers on environmental law issues
contract until all 289 items were remedied. The that arise under federal law or under the law of
contractor contested all 289 items and demanded State A. To earn some extra money, the attorney
immediate payment. The couple refused to pay moonlights as an estate planner, drafting wills
and refused to talk further with the contractor. and trust agreements for other Forest Service
At that point, the contractor called in the employees who live and work in State A. She
attorney, who met with the couple and offered to does not advertise her estate planning services,
represent both them and the contractor in trying and she serves only Forest Service employees,
to find an amicable solution to their dispute. not the general public.
The attorney said that if his efforts failed, he
would charge no fee; if his efforts produced an Is the attorney subject to discipline by State A
amicable solution, then his total fee would be for the unlicensed practice of law?
$2,500, half to be paid by the couple and half by
the contractor. (A) No, because State A has no jurisdiction to
discipline her, but she could be disciplined
May the attorney represent both the couple by State B for practicing without a license
and the contractor on those terms? in State A.

(A) No, because the attorney has proposed a (B) No, because her work for the Forest Service
contingent fee arrangement, and there is no is done under federal authority, and her
res from which the fee can be paid. moonlighting is done only for other federal
employees, not members of the general
(B) No, because the attorney cannot reason- public.
ably believe that he can represent the couple
competently and diligently in light of his (C) Yes, with respect to her moonlighting as
relationship with the contractor. an estate planner, but not with respect to
her environmental law work for the Forest
(C) Yes, but only if both the couple and Service.
the contractor give informed consent,
confirmed in writing, to the arrangement. (D) Yes, with respect to both her moonlighting
as an estate planner and her environmental
(D) Yes, because the attorney would, in essence, law work for the Forest Service.
be serving as a third-party neutral between
the couple and the contractor.

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346. PRACTICE EXAM 3

Question 53 Question 54

A bondsman is licensed by the state to act as An attorney limits his practice to criminal
a surety on bail bonds, subject to extensive state defense. About 40% of his workload comes from
regulations. When he acts as surety on a bail court appointments. When a conflict of interest
bond, the bondsman pledges to pay the court a prevents the public defender from representing
specified sum if a person who has been released an indigent defendant, the presiding judge
on bail fails to show up for court proceedings on appoints defense counsel from a list of volun-
a given date. Often a family member or friend of teer lawyers. The state pays appointed defense
an accused person comes to the bondsman’s office counsel at a modest hourly rate. The attorney
to arrange for a bail bond. On these occasions, observed with envy that his lawyer friend was
the family member or friend sometimes asks the appointed about twice as often as he was. The
bondsman to recommend a good criminal defense attorney asked his friend how one goes about
lawyer. The bondsman always refers the person getting more appointments, and the friend
to one attorney whom the bondsman believes to responded that although lawyers were to be
be the best criminal defense lawyer in the county, selected randomly from the list, the lawyers who
a lawyer who limits his practice to the defense of contributed to the political campaigns of local
people accused of felonies. The bondsman and incumbent judges running for re-election were
the attorney have worked out a reciprocal referral being selected more often. The attorney took
agreement. In return for the referrals he gets from this advice to heart and started making signifi-
the bondsman, the attorney always sends people cant contributions to the campaign committees
to him for bail bonds. The attorney would do that of incumbent judges running for re-election; he
even without the reciprocal agreement because would not have made such contributions but for
he regards the bondsman as the most honest and his friend’s advice. As predicted, the attorney
dependable bondsman in the county. The attorney started getting significantly more appointments
does not disclose the reciprocal referral agreement than before.
to the people he refers because they are invariably
under great stress and not interested in arcane Are the attorney’s political contributions
technicalities. proper?

Is the attorney’s participation in the reciprocal (A) No, but only because his contributions con-
referral agreement proper? stitute common law bribery.

(A) No, because the attorney does not disclose (B) No, because his motive in making the
the agreement to the people he refers to the contributions is to obtain more appoint-
bondsman. ments.

(B) No, because lawyers must not encourage (C) Yes, because lawyers are permitted to
nonlawyers to refer legal work to them. participate freely in the political process.

(C) Yes, because the agreement simply reflects (D) Yes, even though his motive in making the
what the attorney would do even without contributions is to obtain more appoint-
the agreement. ments.

(D) Yes, because the attorney has a right of

free speech under the First and Fourteenth
Amendments to refer people to whomever
he wishes.

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 PRACTICE EXAM 3 347.

Question 55 (A) Both the volunteer lawyer and the law firm
will be subject to civil liability in a legal
An attorney is a partner in a 300-member law malpractice action brought by the manufac-
firm that serves as outside general counsel to one turer because the volunteer lawyer’s advice
of the world’s largest manufacturers of tactical- causes the worker to sue the manufacturer
guided missiles. The manufacturer employs for discriminatory termination.
many engineers, mechanics, and assembly line
workers who have immigrated to the United (B) The volunteer lawyer is subject to disci-
States from various parts of the world. The pline for failing to do a conflict-of-interest
United States Department of Homeland Security check before giving legal advice to the fired
“strongly advised” the company to fire 42 of worker.
these employees, whose names appear on the
federal government’s terrorist watch list. The (C) The volunteer lawyer’s conduct was proper
manufacturer regards all 42 people as valuable, because she did not know that the manufac-
dependable employees, so it consulted the turer was her law firm’s client or that the
attorney in the strictest of confidence, asking for attorney had advised the manufacturer on
legal advice about what to do. Other lawyers at the issue at hand.
the attorney’s law firm were not told about the
manufacturer’s request, nor about the advice (D) The attorney is subject to discipline for
that the attorney gave the manufacturer. The representing the manufacturer in the litiga-
manufacturer ended up firing two engineers tion because the volunteer lawyer gave legal
and one assembly line worker, but it kept the advice to the worker at the clinic.
other 39 people. The fired assembly line worker
went to a storefront legal clinic to obtain some
advice about his legal rights. The clinic is run
by a nonprofit religious organization; the clinic’s
mission is to offer free, fast legal advice to
anyone who cannot afford to obtain it elsewhere.
The clinic receptionist sent the worker to the
desk of a volunteer lawyer who is a brand new
associate in the attorney’s law firm, and she did
not know that the manufacturer is one of the
firm’s clients. She also knew nothing about the
advice the attorney gave the manufacturer. The
volunteer lawyer dutifully advised the worker
of his rights under state and federal employ-
ment law and under the collective bargaining
agreement between his union and the manufac-
turer. Based on that advice, the worker sued the
manufacturer for discriminatory termination;
the attorney represented the manufacturer in that
litigation.

Which of the following is correct?

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348. PRACTICE EXAM 3

Question 56 (A) Yes, because the attorney was not offering

the accounting service ancillary to her legal
An attorney limits her practice to corpo- service; the accounting service was offered
rate securities law. A small start-up company by the accounting firm, an independent
wholly owned and operated by two brilliant entity.
young computer geeks has hired the attorney
to guide them through an initial public offering (B) Yes, because the attorney fully disclosed
of shares in their company. One of the attor- the situation to the company’s owners and
ney’s first recommendations was to fire their obtained their informed consent.
current lazy, in-house accountant and hire
a skilled outside accounting firm to keep (C) No, because the attorney was essentially
the company’s books and prepare the finan- entering into a business transaction with her
cial documents required for an initial public client.
offering. The attorney recommended a small,
local accounting firm, but in doing so the (D) No, because the attorney did not put her
attorney orally cautioned the company owners cautionary words in writing, she did not
that she was a certified public accountant as give the company owners a chance to
well as a lawyer, and that she owned one of the consult an outside lawyer, and she did not
three partnership shares in the accounting firm obtain their consent in writing.
that she recommended to them, so she had a
significant financial interest in the firm. The
attorney explained that she no longer practiced
accounting, but that she kept her partner-
ship share as an investment. The attorney
further explained that if they decided to hire
the accounting firm, their dealings with the
accounting firm would not be governed by the
rules of legal ethics and anything told to the
accounting firm in confidence would not be
protected by the attorney-client privilege.

The company owners orally indicated that

they understood, and they subsequently hired the
accounting firm.

Was the attorney’s conduct proper?

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 PRACTICE EXAM 3 349.

Question 57 Question 58

The law of a particular state prohibits agree- In the most recent election, an attorney who
ments not to compete, except for agreements practices election law represented a candidate
that are ancillary to the sale of a business or who, several days before the election, told the
professional practice and are reasonable in attorney in confidence that he had hired some
both duration and geographic scope. For 20 gangs of thugs to frighten voters away from the
years, an attorney practiced patent, copyright, polls in neighborhoods where most people would
and trademark law in an area within the state. vote for his opponent. The attorney was shocked
Seeking a new challenge, the attorney entered and immediately advised the candidate to call off
the political race for a trial court judgeship. He the thugs or withdraw from the race. The candi-
won a four-year term. Before taking the oath date refused to do either, whereupon the attorney
of judicial office, the attorney sold his entire withdrew as the candidate’s lawyer. The attorney
law practice to a young lawyer for $150,000. did not, however, tell anyone about the candi-
In the sale contract, the attorney promised the date’s evil plan. On election day, the candidate’s
younger lawyer not to re-enter the practice of thugs did what the candidate paid them to do, and
patent, copyright, or trademark law in the area the candidate defeated his opponent by a narrow
for five years. At the end of his four-year term, margin. A few days later, the opponent learned
the attorney ran for re-election to his judgeship; what the thugs had done. The opponent was
to everyone’s great surprise, he lost the election furious and called a press conference at which
to a much less qualified opponent. Because he he accused the candidate and the attorney of
needed to earn a living, the attorney immedi- conspiring to intimidate his supporters and keep
ately re-entered the practice of patent, copyright, them away from the polls. The local newspaper
and trademark law in the area in which he printed his allegations in a front-page story,
formerly had practiced. accompanied by a large photograph of the candi-
date and the attorney smiling at each other.
Is the attorney subject to discipline? Which of the following propositions is false?
(A) Yes, because the attorney re-entered law (A) It was proper for the attorney to withdraw
practice in the area after the sale to the after the candidate refused to call off the
younger lawyer. thugs or drop out.

(B) Yes, because the attorney made an agree- (B) It was proper for the attorney not to tell
ment that restricts his right to practice anyone before the election about the candi-
law and it was not incident to a retirement date’s evil plan.
benefits plan. (C) After the opponent’s press conference and
the newspaper story, but before any kind of
(C) No, but the attorney could be subject to
formal proceeding, it would be proper for
civil liability to the younger lawyer in a suit
the attorney to disclose what the candidate
to enforce the agreement not to compete,
told him in confidence about the thug plan
assuming that the agreement was reason-
and about his own response.
able in duration and geographic scope.
(D) After the opponent’s press conference and
(D) No, because the sale of the attorney’s law the newspaper story, but before any kind of
practice was proper, but the agreement not formal proceeding, it would be improper for
to compete is void, even if it is reasonable the attorney to disclose what the candidate
in duration and geographic scope. told him in confidence about the thug plan
and about his own response.

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350. PRACTICE EXAM 3

Question 59 (A) Yes, the SEC’s regulations under the

Sarbanes-Oxley Act require her to alert the
An attorney practices in State A. State A’s SEC if her other efforts have proven fruit-
rules of legal ethics depart from the ABA Model less.
Rules in one significant respect: State A has no
“financial injury” exception to the lawyer’s duty (B) No, the SEC’s regulations give her discre-
of confidentiality. Thus, when a State A lawyer tion to either reveal or not reveal the matter
learns in confidence that her client is about to to the SEC.
use her legal services to inflict serious financial
injury on someone, the lawyer may withdraw, (C) Yes, because the shareholders could be
but she must not reveal what she learned in seriously financially injured if the scheme
confidence. The attorney limits her practice to continues.
federal securities law, and she regularly appears
before the Securities and Exchange Commission (D) No, because State A’s legal ethics rules do
(“SEC”). One of her major clients is a company not allow her to reveal confidential informa-
that makes and sells cotton textiles. The compa- tion in this situation.
ny’s shares are traded on the New York Stock
Exchange and in securities matters the company
is regulated by the SEC. While working on an
SEC registration statement for the company,
the attorney learned in confidence that three of
the company’s top executives were cooperating
in a scheme to loot the company of millions
of dollars. If their scheme continues, it could
drive the company into insolvency. The attorney
alerted the chief legal officer of the company to
the situation, but he did nothing. She then alerted
the chief executive officer, who also did nothing.
Finally, she alerted the six outside members of
the board of directors, but they too failed to act.
In disgust, the attorney withdrew from the matter
and vowed never again to represent the company.

Must the attorney now tell the SEC about the

scheme?

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 PRACTICE EXAM 3 351.

Question 60 (A) No, because the oil and gas attorney should
have obtained the granddaughter’s in-
When a farmer sold the family farm many formed consent before sending the letter to
years ago, he told his lawyer that he wanted to the company.
reserve all of the subsurface rights—i.e., the
rights to mine or drill for oil, gas, minerals, (B) No, because the interests of the company
geothermal energy, and the like. The lawyer and the granddaughter were concurrently
drafted a deed that was supposed to accom- conflicting.
plish that goal. Ten years later, the farmer died
and the subsurface rights passed by his will to (C) Yes, because the granddaughter had previ-
his beloved granddaughter. Thirty years after ously authorized the oil and gas attorney to
that, the granddaughter received a letter from send the letter to the company.
a petroleum exploration and drilling company
offering to lease the subsurface drilling rights (D) Yes, because to withhold the informa-
from her in return for $10,000 plus 15% of the tion from the company would amount to a
wellhead selling price of all gas and oil obtained misrepresentation of a material fact.
from the property. All the granddaughter
had to do was sign the lease and supply the
company with a letter from a qualified oil and
gas attorney, certifying that the granddaughter
was indeed the owner of the subsurface rights.
The granddaughter hired an oil and gas attorney
to research her title, write the letter, and send
it to the company. After doing a little research,
the oil and gas attorney concluded that the
farmer’s lawyer had bungled the deed. Instead of
reserving the subsurface rights, the lawyer had
inadvertently sold them to the man who bought
the farm. With a heavy heart, the oil and gas
attorney put her findings in an opinion letter and
mailed duplicate originals to the company and
the farmer’s granddaughter.

Was it proper to do so?

STOP
 PRACTICE EXAM 3 353.

ANSWER SHEET

1 A B C D 31 A B C D
2 A B C D 32 A B C D
3 A B C D 33 A B C D
4 A B C D 34 A B C D
5 A B C D 35 A B C D

6 A B C D 36 A B C D
7 A B C D 37 A B C D
8 A B C D 38 A B C D
9 A B C D 39 A B C D
10 A B C D 40 A B C D

11 A B C D 41 A B C D
12 A B C D 42 A B C D
13 A B C D 43 A B C D
14 A B C D 44 A B C D
15 A B C D 45 A B C D

16 A B C D 46 A B C D
17 A B C D 47 A B C D
18 A B C D 48 A B C D
19 A B C D 49 A B C D
20 A B C D 50 A B C D

21 A B C D 51 A B C D
22 A B C D 52 A B C D
23 A B C D 53 A B C D
24 A B C D 54 A B C D
25 A B C D 55 A B C D

26 A B C D 56 A B C D
27 A B C D 57 A B C D
28 A B C D 58 A B C D
29 A B C D 59 A B C D
30 A B C D 60 A B C D
 PRACTICE EXAM 3 355.

Answer to Question 1 Answer to Question 3

(C) (A) is incorrect because lawyers should (B) In a criminal case, it is for the client to
treat all participants in a proceeding with decide what plea to enter. [ABA Model
courtesy, respect, and cooperation. [See Rule 1.2(a)] Also, the attorney’s apparent
Restatement §106] (D) is incorrect because lack of concern for the accused’s interests
there is nothing that prohibits a lawyer from raises a serious question about her fitness
talking with a deposition witness about to practice law. [See ABA Model Rule
the case before a deposition. However, 1.3] Therefore, the ADA must report the
a lawyer must not communicate about a incident to the disciplinary authorities.
case with a person he knows to be repre- [ABA Model Rule 8.3(a)] (A) is incorrect
sented by a lawyer, without first getting because as long as the attorney properly
the lawyer’s consent. [ABA Model Rule represented her client and did not violate
4.2] Thus, (C) is correct and (D) is incor- the Rules, her desire to gain publicity
rect. Also, Comment 7 to ABA Model Rule is irrelevant. (C) and (D) are incorrect
4.2 states that, in the case of a represented because neither the attorney’s competent
organization, a lawyer for one party may representation of the accused at trial nor
not communicate concerning the matter winning the case undo the violation of
with persons whose acts or omissions in attorney ethics resulting from the attorney’s
connection with the matter may be imputed failure to convey the offer to the accused.
to the organization for purposes of civil or
criminal liability. Here, the corporation’s Answer to Question 4
employee fits the description of such a
person. Thus, (B) is incorrect. (C) An applicant for admission to the bar may
be unqualified due to mental or emotional
Answer to Question 2 instability. The professor here had an
obligation three years ago to report her
(C) A lawyer must not communicate about a candid opinion to the state bar, even though
matter with a person the lawyer knows is she lacks training in the field of mental
represented by counsel, unless that person’s health. Likewise, she is now obliged to
counsel consents or the law authorizes the support the law student’s re-petition for
communication. [ABA Model Rule 4.2] admission to practice. ABA Model Rule
Thus, (C) is clearly improper. Because it is 8.1 prohibits a lawyer in connection with a
within a prosecutor’s discretion to request bar admission application from knowingly
that the court prosecute on a lesser offense, making a false statement of material fact.
(A) is proper. (B) is proper because there Thus, the professor must now disclose her
is no indication that the juvenile could not current feelings regarding the law student’s
legitimately have been prosecuted for auto fitness to practice law. Thus, (C) is correct,
theft. (D) is proper because the commu- and (A), (B), and (D) are incorrect.
nication is between counsel, and defense
counsel must promptly inform her client of Answer to Question 5
a proffered plea bargain “unless the client
has previously indicated that the proposal (B) ABA Model Rule 3.5(a) forbids a lawyer
will be acceptable or unacceptable or has from seeking to influence a judge by
authorized the lawyer to accept or to reject means prohibited by law. CJC Rule 3.13(C)
the offer.” [See Comment 2 to ABA Model (3) permits a judge to accept a gift from
Rule 1.4] someone who has come or is likely to come
before the judge if the judge files a public
356. PRACTICE EXAM 3

report of the gift. (A) is wrong because tions, as no present fraud upon the tribunal
there is no specific value that is tied to or system of justice is contemplated, and
undue influence. (C) is wrong because ABA Model Rule 8.3 specifically states that
campaign contributions are not the only matters considered confidential under Rule
types of gifts lawyers may make to judges. 1.6 are not included in the obligation to
(D) is wrong because the value of the gift reveal judicial misconduct.
triggers only a reporting requirement. The
gift is not improper as such. Answer to Question 8

Answer to Question 6 (A) There are several legal theories on which

sanctions could be imposed here, but the
(A) A lawyer must not neglect a legal matter most obvious is Rule 37 of the Federal
that has been entrusted to him; i.e., a lawyer Rules of Civil Procedure, which is specifi-
must act with reasonable diligence and cally designed for discovery abuse. When
promptness in representing a client. [ABA a party’s managing agent fails to show up
Model Rule 1.3] Furthermore, a lawyer for a properly scheduled deposition, Rule 37
has a duty to keep the client reasonably gives the judge a wide choice of sanctions,
informed about the status of a matter and to including such things as: an order that the
promptly comply with reasonable requests issues in question be deemed proven in
for information. [ABA Model Rule 1.4(a) favor of the innocent party; an order forbid-
(3), (4)] The attorney’s failure to begin the ding the offender from offering proof on
work before March 10, coupled with his the issues in question; an order striking the
failure to return his client’s telephone calls offender’s pleadings; an order finding the
or otherwise assure the client that the work offender guilty of contempt of court; and an
would be completed on time, constitutes order that the offending party, its lawyer, or
client neglect and is grounds for discipline. both must pay the innocent party’s expenses
Thus, (A) is correct, and (B) and (C) are and attorney fees incurred because of the
incorrect. (D) is incorrect because, as stated violation. (A) is better than (B) because
above, the attorney neglected his client (B) implies an incorrect legal standard; a
and is subject to discipline even though the lawyer can be sanctioned under Rule 37
client and the trust ultimately suffered no even if she did not act obstinately or disre-
loss. spectfully. (C) and (D) are not as good
as (A) because they imply that a lawyer
Answer to Question 7 cannot be sanctioned for discovery abuses
by her client or her client’s managing agent.
(D) Although the retired attorney has retired That is not correct. A lawyer has to walk
from active practice, it is clear from the a thin line between bullying her client and
facts that the judge consulted him as being bullied by her client. The defense
a lawyer, rather than as a friend; thus, attorney was not blame-free here. She was
the retired attorney may not reveal the on notice that the deponent was an uncoop-
judge’s disclosures of past crimes. [See erative witness. He had failed to show up
ABA Model Rule 1.6] Therefore, (D) is three times previously, and the judge had
correct and (C) is incorrect. (A) is incorrect specifically warned the defense attorney
because an ongoing lawyer-client relation- that she would be sanctioned if she showed
ship need not be established for the rules up without the deponent on August 16.
of confidentiality to apply. (B) is an incor- The defense attorney could have informed
rect statement of a lawyer’s ethical obliga- the deponent’s corporate superior about
 PRACTICE EXAM 3 357.

the situation, seeking to have the superior Answer to Question 11

force the deponent to behave. She could
also have reminded her client that she (A) A lawyer does not need the consent of
may withdraw as counsel if the deponent adversary counsel to interview a nonparty
does not cooperate [ABA Model Rule witness. Furthermore, nothing in the Rules
1.16(b)], and that she must withdraw if the would prevent the ADA from asking the
deponent’s mulishness forces her to violate pawnbroker about his prior criminal record,
a court order [ABA Model Rule 1.16(a)]. and he would have good reason for doing so
The defense attorney’s failure to take these because the pawnbroker’s criminal record
or similar steps to assure the deponent’s can be used to impeach his testimony.
presence makes the sanctions order appro- Thus, (A) is correct, and (B), (C), and (D)
priate. are incorrect.

Answer to Question 9 Answer to Question 12

(D) Under ABA Model Rule 1.12(a), the former (B) ABA Model Rule 7.2(b)(4) permits recip-
law student should be barred from repre- rocal referral arrangements among lawyers
senting the client because she was person- if the arrangement is nonexclusive and
ally and substantially involved in his case disclosed to referred clients. (A) is wrong
while a law clerk. (Note that ABA Model because the parties to a reciprocal referral
Rule 1.12(a) would permit the representa- arrangement need not be licensed in
tion if both parties gave informed consent, different states. (C) is wrong because the
confirmed in writing, to the representa- facts do not involve the division of a legal
tion, but there is no mention of both parties fee. (D) is wrong because it ignores ABA
giving informed consent in these facts.) Model Rule 7.2(b)(4).
(A) is incorrect because the former law
student’s previous personal and substantial Answer to Question 13
involvement in the case will prohibit her
from representing the client regardless of (D) A lawyer must not imply that he can
whether she learned any confidential infor- improperly influence a government official.
mation. (B) is incorrect because the former [ABA Model Rule 8.4] Here, the attorney
law student is presently licensed, and Model is not actually appearing before his sister,
Rule 1.12 clearly applies to former law and so (B) and (C) are incorrect. Without
clerks. (C) is incorrect because Model Rule more, the mere objection of an opposing
1.12 allows such representation only if all party should not keep the attorney from
parties consent after full disclosure. appearing in district court; thus, (A) is
incorrect. (D) is therefore the best answer.
Answer to Question 10
Answer to Question 14
(A) Under CJC Rules 3.1(A) and 3.7(A)(6), it
would be proper for the judge to serve on (D) The consumer’s attorney is not subject to
the board of this foundation that provides malpractice liability because his client
legal education for lawyers and judges. CJC (the consumer) has no damages. Damages
Rule 3.12 would permit her to accept the are part of the cause of action for legal
modest salary that is paid to other directors. malpractice. The attorney may be subject
Accordingly, (A) is the correct answer and to discipline, but not malpractice liability.
(B), (C), and (D) are incorrect. (A) is incorrect because, although it
correctly states the attorney’s duty, there
358. PRACTICE EXAM 3

is no malpractice claim because of the reasonably anticipate that the accused will
lack of damages. (B) is incorrect for the claim the attorney-client privilege, she
same reason. (C) is incorrect because the has no obligation to try to testify to what
consumer’s statement that he probably she heard. In addition, ABA Model Rule
would not accept an offer under $500,000 3.8(b) mandates the prosecutor to protect
does not constitute authorization of the the defendant’s right to counsel. Accord-
attorney to accept or reject offers without ingly, (B) is correct and (A) is incorrect.
consulting him. Furthermore, to avoid As to the defense attorney’s obligations, the
problems such as this, authorization to facts given in the question do not justify an
accept or reject settlement offers without assumption that the accused has asked his
consulting the client should be in writing. attorney to present false evidence on his
behalf, or that he is planning to take the
Answer to Question 15 witness stand and perjure himself. Accord-
ingly, we are not faced with any questions
(B) A lawyer is subject to discipline for making under ABA Model Rule 3.3. Thus, the
a false statement of law to the court. [ABA defense attorney should preserve what the
Model Rule 3.3(a)(1)] (A) is overbroad accused said in confidence and proceed
because a lawyer need not cite opposing with the case in the normal manner. [See
cases from noncontrolling jurisdictions, ABA Model Rule 1.6(a)] This makes (C)
and a lawyer may argue the case from an and (D) incorrect.
advocate’s viewpoint, which may not neces-
sarily be “objective.” (C) and (D) are incor- Answer to Question 18
rect because they do not take into account
the stricture against making a false state- (C) A lawyer must provide competent repre-
ment of law. The attorney here has gone sentation to a client. [ABA Model Rule 1.1]
beyond the bounds of zealous representa- This includes use of methods and proce-
tion. dures meeting the standards of competent
practitioners. It also includes adequate
Answer to Question 16 preparation. In the case at bar, the plain-
tiff’s attorney’s decision on whether to
(B) A client’s funds are ordinarily deposited further search for the unknown witness was
in an account where the lawyer’s office a matter of judgment. If she was reasonable
is located, but they can be deposited in believing that the plaintiff’s testimony
elsewhere with the client’s consent. [ABA would be sufficient, then her preparation
Model Rule 1.15(a)] (A) is wrong because will not be deemed inadequate. Thus, (C) is
the client’s funds appear to be an expense the correct answer, and (A) is incorrect. (B)
advance, not a “true retainer fee.” (C) and is incorrect because even though the plain-
(D) are wrong because there are no such tiff lost, his attorney may have provided
requirements. him with competent representation. (D) is
irrelevant.
Answer to Question 17
Answer to Question 19
(B) The old common law rule regarding
attorney-client privilege allowed an eaves- (D) ABA Model Rule 7.2(b) prohibits a lawyer
dropper to testify to an otherwise privileged from giving anything of value to a person
communication, but the modern law is to in return for a recommendation of the
the contrary. [See, e.g., Cal. Evid. Code lawyer’s services. (A) and (B) are incorrect
§§952, 954] Because the prosecutor can because the truth of the information or lack
 PRACTICE EXAM 3 359.

of confidentiality is beside the point. (C) is contract must be individually tailored to

incorrect because there is no prohibition, each client. (C) is incorrect because ABA
as such, against demeaning members of the Model Rule 1.8(e) permits lawyers to
profession. advance litigation expenses, but does not
require them to do so. (D) is incorrect
Answer to Question 20 because nothing in the Rules requires the
client to pay litigation expenses as they are
(A) This is the best answer here because incurred.
nothing in this advertisement violates the
ABA Model Rules. The fact that the ad Answer to Question 23
is not misleading is important because
neither the ABA Model Rules nor the First (A) The usual rationale supporting relatively
Amendment protects misleading or decep- high contingent fees is that the lawyer is
tive advertising. (B) is incorrect because taking a gamble in handling the case. Here,
fee splitting is a separate issue; it does no gamble is involved, and the attorney
not affect the propriety of the ad. (C) is is subject to discipline under ABA Model
incorrect because the attorney here is not Rule 1.5(a) for attempting to exact an
soliciting business, and also because the unreasonable fee. The criteria of (A) more
traditional ban on all solicitation is no clearly establish excessiveness than those in
longer constitutional. (D) is incorrect in that (B). (C) is incorrect because even though
the ad is not patently in bad taste, and even contingent fees may be thought gener-
if it were, it would probably be protected ally appropriate for personal injury cases,
by the First Amendment unless it was an excessive fee, whether contingent or
misleading or overreaching. hourly, is never appropriate. (D) is incorrect
because even though the client could have
Answer to Question 21 gone to another attorney, the attorney tried
to exact an unreasonable fee from her.
(A) The attorney has no duty to represent the
sales manager, so (A) is proper. (B) is Answer to Question 24
improper because the attorney may only
represent the sales manager if he does not (D) A judge should refrain from financial
insist on testifying falsely. [See ABA Model and business dealings that involve her
Rule 3.3(a)(3)] (C) is improper because in frequent transactions with lawyers or
it is a form of extortion. (D) is improper persons likely to come before the court
because the sales manager’s confession on which she sits. [CJC Rule 3.11(C)(3)]
to past perjury is protected by the duty of Here, the judge’s close business relation-
confidentiality. [See ABA Model Rule 1.6] ship with a lawyer who appears in her
courtroom violates CJC Rule 3.11(C)(3). It
Answer to Question 22 makes no difference that the judge acquired
the property before she became a judge.
(A) There is nothing in the ABA Model Rules Thus, (A) is incorrect. (B) is incorrect
that prohibits a lawyer from requiring a because even if the judge’s dealings with
client to pay in advance the first $500 of the property do not take up too much of her
litigation expenses, so long as the $500 time, there will still be an adverse reflection
payment is reasonable. [ABA Model Rule on her impartiality. (C) is incorrect because
1.5(a)] (B) is incorrect because the ABA CJC Rule 3.11(A) permits a judge to hold
Model Rules do not suggest that every investments, including real estate, and to
clause of a standard form employment engage in other remunerative activity.
360. PRACTICE EXAM 3

Answer to Question 25 Answer to Question 27

(D) All jurisdictions in the United States have (D) (A) reflects a misconception of ABA Model
obstruction of justice statutes that prohibit Rule 1.8(f), which prohibits a lawyer from
threatening jurors, witnesses, and judges allowing the interests of a third party to
and also prohibit similar misconduct. For interfere with the relationship between
example, 18 U.S.C. section 1503 makes the lawyer and the client. That is not the
it a felony to “endeavor . . . to influence, case where an alleged expert like the
intimidate, or impede any . . . juror.” The psychologist is hired to assist the lawyer
term “endeavor” is broader than “attempt,” in representing the client. (C) reflects a
and one can be guilty of endeavoring to similar misconception. Lawyers frequently
intimidate a juror even though the juror is use a variety of experts to advise them
not intimidated. [See also United States during trial. The attorney did not give
v. Atkin, 107 F.3d 1213 (6th Cir. 1997)— up his discretion to the psychologist, as
attorney violated section 1503 by obtaining evidenced by the fact that he sometimes did
money from defendant to bribe judge, even not follow her advice. Furthermore, such
though attorney ultimately did not offer the experts frequently sit at the counsel table
bribe] (A) is incorrect because it overlooks so they can be close to the lawyer during
obstruction of justice statutes such as trial. (B) is incorrect because a lawyer is
section 1503. (B) is incorrect because the allowed to advance litigation expenses.
effort need not be successful, as in the [See ABA Model Rule 1.8(e)(1)] Although
Atkin case, above. (C) is incorrect because some lawyers might question the wisdom
the defense attorney can be punished as of spending money on a purported expert
an accomplice, even if he did not give the on liars, that would seem to be a matter
defendant’s employee anything of value. best left to the discretion of the individual
The employee did the intimidating, but it lawyer, and the Model Rules do not suggest
was the defense attorney who instructed or otherwise. Thus, (D) is correct, and (A),
induced him to do it. (B), and (C) are incorrect.

Answer to Question 26 Answer to Question 28

(A) This is the best answer here because it (A) ABA Model Rule 4.3 forbids a lawyer to
complies with the ABA Model Rules’ give advice to an unrepresented person if
view that advertising must not be “false or the lawyer knows that the person’s interests
misleading.” [See ABA Model Rule 7.1] It conflict with those of the client. Thus, (A)
also takes into account First Amendment is correct. The attorney is allowed to advise
freedoms. (B) is incorrect because the the unrepresented person to obtain a lawyer,
geographic scope of lawyer advertising is but the critical issue is giving advice. Thus,
not limited to the city in which the lawyer (A) is a better answer than (B). (C) is
practices. (C) is incorrect because there is irrelevant to any ethical issue. (D) is incor-
no prohibition on “self-laudatory” adver- rect because there is no way a lawyer can
tising in the ABA Model Rules. The attor- compel a third party to obtain counsel.
ney’s statement regarding proficiency in
Spanish compared with other local lawyers Answer to Question 29
is factually verifiable and thus does not run
afoul of ABA Model Rule 7.1. (D) is incor- (C) Ordinarily, a lawyer can act for both
rect because the listing of academic degrees the insured and the insurance company
is clearly proper. because their interests are only potentially
 PRACTICE EXAM 3 361.

in conflict. But here they have come into substantial bodily harm. Here, the husband
present, actual conflict. The insurance planned to commit suicide, which clearly
company’s attorney cannot adequately falls within this rubric. Thus, (B) is correct,
represent the car owner without harming and it logically follows that (C) and (D) are
the insurance company, and he cannot incorrect. (A) does not go directly to the
protect the insurance company’s interests ethical question involved.
without harming the car owner. There-
fore, he must seek the court’s permission Answer to Question 32
to withdraw from the case entirely, and he
must not reveal the car owner’s confidential (C) A lawyer who is licensed to practice in one
statement. [See ABA Model Rules 1.6, 1.7, state (or in a foreign country or province)
1.16(a)(1)] In a case very much like this one, is not, without more, entitled to practice in
the Seventh Circuit held that the attorney any other state. A lawyer is subject to disci-
“should have refused to participate further pline for practicing in a jurisdiction without
in view of the conflict of interest” between being licensed to do so. Because there is
the insured person and the insurance no indication on the letterhead regarding
company. [State Farm Mutual Automobile limitation of the brother’s practice to a
Insurance Co. v. Walker, 382 F.2d 548 (7th province in Canada, the sister is abetting
Cir. 1967); and see ABA Informal Op. 1476 the unauthorized practice of law. [See ABA
(1981)] Thus, (C) is correct, and (A) and (D) Model Rule 5.5(a)] Thus, (C) is correct and
are incorrect. (B) is incorrect because of the (B) is incorrect. (A) is a true statement but
conflict of interest and because the attorney irrelevant. (D) is nonsensical.
may be advocating perjury.
Answer to Question 33
Answer to Question 30
(B) ABA Model Rule 1.11(a) prohibits a lawyer
(D) CJC Rule 4.4 allows a candidate for an from representing a private client in a
elected judicial office to have a campaign matter in which the lawyer participated
committee to solicit campaign funds and personally and substantially as a public
publicly stated support for the candidate. employee, unless the government agency
No provision of either the CJC or the in question gives its informed consent,
ABA Model Rules prohibits a lawyer who confirmed in writing. The attorney here was
frequently appears before a judge from neither personally nor substantially involved
contributing to or publicly endorsing the with any matter concerning the corporation,
campaign. Thus, (A), (B), and (C) are all so he may now represent the corporation
proper here. However, (D) was improper without obtaining the EPA’s consent. Thus,
because judges and judicial candidates are (B) is correct, and (A), (C), and (D) are
not permitted to “make pledges, promises incorrect.
or commitments that are inconsistent with
the impartial performance of the adjudica- Answer to Question 34
tive duties of judicial office.” [CJC Rule
4.1(A)(13)] (B) ABA Model Rule 1.8(f) prohibits a lawyer
from accepting compensation for repre-
Answer to Question 31 senting a client from anyone other than that
client, unless two conditions are satisfied:
(B) ABA Model Rule 1.6(b)(1) allows a lawyer (1) the client gives informed consent, and
to disclose a client’s confidential informa- (2) the person who pays the compensation
tion to prevent reasonably certain death or does not interfere with the representation of
362. PRACTICE EXAM 3

the client or with the lawyer’s independence. professional legal corporation. Thus, (A) and
[See also Restatement §134, comment d] In (D) are incorrect. (B) is incorrect because
this case, the “friends” are interfering with incorporation will limit the malpractice
the lawyer’s representation of the client and liability of the lawyers only to the extent
with his independence by conditioning their permitted by the law of the state in question.
financial aid on the accused’s not implicating [Restatement §58, comment c] (C) is correct
them in the cocaine caper. The results of because ABA Model Rule 5.4(d)(1) permits
their interference become obvious when this exception to the general rule that a
the accused is coerced into turning down nonlawyer may not hold stock in a profes-
the attractive plea bargain. [See Quintero sional legal corporation.
v. United States, 33 F.3d 1133 (9th Cir.
1994)—similar facts] (A) and (C) are both Answer to Question 37
incorrect because they misstate the princi-
ples expressed in ABA Model Rule 1.8(f)— (C) The attorney may not represent both the
(A) is too broad, and (C) does not take into passenger and the driver when there is
account the interference by the “friends.” (D) a potential conflict of interest between
is incorrect because the prosecutor has an them unless: (1) the attorney reasonably
ethical obligation to help assure a criminal believes that he can represent both clients
defendant’s right to counsel. [See ABA effectively; and (2) the passenger and the
Model Rule 3.8(b)] driver give informed consent, confirmed
in writing. The attorney must withdraw
Answer to Question 35 from the joint representation, however, if
later discovery shows that the passenger
has an actual claim against the driver.
(A) The attorney’s actions are proper. With
Here, there is no indication that the driver,
the aid of her associates, the attorney, an
the passenger, and the bus company all
experienced patent lawyer, was clearly
gave informed consent, confirmed in
competent to handle the case. (B) is wrong
writing, and thus (C) is not a true state-
because it states one of the limitations on
ment. [See ABA Model Rule 1.7] (A) is a
fee splitting between lawyers in different
true statement for the same reason. (B) is
firms. It does not apply to lawyers in the
true because a lawyer must not represent a
same firm. (C) is wrong because this is
client if the representation of that client will
the type of disclosure that is impliedly
be directly adverse to the representation
authorized to carry out the representa-
of another client, unless both clients give
tion. It does not abrogate the protections of
informed consent, confirmed in writing.
privilege or confidentiality, and no formal
[See ABA Model Rule 1.7] (D) is true
consent by the client is required. [See ABA
because the attorney already represents the
Model Rule 1.6(a)] (D) is wrong because
bus company in the unrelated matter.
it too states a limitation concerning fee
splits between lawyers in different firms. Answer to Question 38
No client consent is required to split a fee
in any manner among lawyers in the same (D) ABA Model Rules 7.1 and 7.2 provide that
firm. [ABA Model Rule 1.5] communications about legal services must
not be false or misleading. Attending a law
Answer to Question 36 school under an “honors program” is not
the same as being an “honors graduate”
(C) Under ABA Model Rule 5.4(d)(1), a of the law school; one could receive high
nonlawyer may not own an interest in a grades as a college undergraduate but
 PRACTICE EXAM 3 363.

graduate at the bottom of her law school Answer to Question 40

class. In addition, a law school concentra-
tion certificate is not the same as being (A) A lawyer must act with reasonable diligence
a “certified specialist.” Accordingly, the and promptness in representing a client.
attorney’s current draft does not comport [ABA Model Rule 1.3] Thus, a lawyer must
with ABA Model Rules 7.1 and 7.2. Thus, not neglect a matter entrusted to him. An
(D) is correct. (A) is incorrect because a example of neglect is failure to file neces-
lawyer may claim to be a certified specialist sary papers, as in this case. It seems clear
under the circumstances specified in ABA that the attorney has violated this standard.
Model Rule 7.2(c). (B) is incorrect because He is, of course, also liable to his client
the facts do not suggest that the ad was for the client’s loss due to his own neglect.
undignified, and the greater problem with Thus, the attorney is guilty of malpractice
the ad is the reason stated in (D). (C) is and violating an ethics rule. Therefore, (A)
incorrect due to the modifier “likely” and is correct, and (B), (C), and (D) are incor-
the lack of specificity regarding the amount rect.
of the potential tax savings. [See Comment
3 to ABA Model Rule 7.1—“The inclusion Answer to Question 41
of . . . qualifying language may preclude a
finding that a statement is likely to create (C) According to ABA Model Rule 6.2(c),
unjustified expectations or otherwise a lawyer may decline employment if the
mislead the public.”] intensity of his personal feelings, as distin-
guished from a community attitude, will
Answer to Question 39 impair his effective representation of a
prospective client. Thus, (C) is correct. (A)
(D) The attorney is not subject to discipline and (B) are incorrect because regardless
because of the brother-sister relationship. A of his personal feelings, a lawyer may not
lawyer may advise a person not to volun- decline representation because a client or a
tarily give information to an opponent or cause is unpopular or community reaction
other party if the person is a relative of the is adverse. [See Comment 1 to ABA
client and that person’s interests will not Model Rule 6.2] (D) is incorrect because
be harmed by not volunteering the infor- the standard is causing an “unreasonable”
mation. [ABA Model Rule 3.4(f)] Here, burden, such as “when it would impose a
there is nothing in the facts to suggest the financial sacrifice so great as to be unjust.”
brother’s interests would be harmed by [See Comment 2 to ABA Model Rule 6.2]
not volunteering the information about his
sister. (A) is wrong because of the excep- Answer to Question 42
tion stated above. (B) is wrong because this
type of advice is not prohibited. If the facts (C) The attorney is not subject to discipline
indicated that the brother’s interests might for failure to correct the court’s mistake
be harmed by not granting the interview because the mistake did not originate with
(e.g., if he had a matter pending with DCS the attorney or his client. In this setting,
that might be negatively influenced by his the attorney would have a duty to speak
noncooperation), the attorney could not out if something he or his client had done
have advised him as she did and should had given the court a false impression, but
then have advised him to seek independent otherwise, he cannot breach his duty of
counsel. (C) is wrong for the reason just confidentiality to the disadvantage of his
stated. client. [See ABA Model Rules 1.6(a), 3.3]
Thus, (A) is incorrect. The fact that this is
364. PRACTICE EXAM 3

a sentencing hearing does not affect the the “clients” are free to go elsewhere
attorney’s duties in any way. This is not for representation and no relationship is
an ex parte proceeding (which would be a “forced” on them. (C) is incorrect because
much thornier issue). Thus, (B) is incor- high-sounding rhetoric and purpose do
rect. (D) is incorrect because had the judge not change the impropriety of attempts to
asked the attorney directly whether this was limit malpractice liability by contract. (D)
his client’s first offense, the attorney would is incorrect because the clients were not
have had to respond truthfully or have asked independently represented in making agree-
to withdraw (which would also have given ments to the contract.
the judge his answer). To answer otherwise
would be perpetrating a fraud on the court. Answer to Question 46

Answer to Question 43 (B) A lawyer has implied authority to consult

other members of her firm regarding a case
(C) Restatement section 60(2) states that a unless there is a specific instruction from
lawyer who self-deals in a client’s confiden- the client to the contrary or some other
tial information can be forced to disgorge compelling reason. [See ABA Model Rule
any profit she makes, even if the client is 1.6(a) and Comment 5] It logically follows
not harmed by the self-dealing. Here, the that (A), (C), and (D) are incorrect.
attorney was self-dealing, even though she
did not tell her friend the precise reason Answer to Question 47
why she was certain her client’s play would
be a hit. For that reason, (A) is incorrect. (C) Generally, title insurance agents and others
(B) and (D) are incorrect because harm to whose businesses border on the practice
the client is not required. of law are allowed to fill in the blanks on
standard form documents that have been
Answer to Question 44 prepared by lawyers. Therefore, (A), (B),
(A) The advertising agency is not a lawyer or and (D) do not constitute the unauthor-
law firm, and a lawyer is prohibited from ized practice of law. But in State Bar v.
sharing legal fees with a nonlawyer except Guardian Abstract & Title Insurance Co.,
under specified limited circumstances, none 587 P.2d 1338 (N.M. 1978), it was held that
of which applies here. [See ABA Model a title insurance company could not advise
Rule 5.4(a)] (B) is incorrect because lawyer its customers about “the legal effect of
advertising is permitted subject to the provi- the language contained in” such standard
sions of ABA Model Rules 7.1 and 7.2. (C) form documents. Thus, (C) is an example
and (D) are incorrect because they do not of unauthorized practice. (C) is therefore
act to undo the impropriety of the fee split. correct, and (A), (B), and (D) are incorrect.

Answer to Question 45 Answer to Question 48

(B) ABA Model Rule 1.8(h) makes it clear (A) (D) is incorrect; the claim is not frivolous
that a lawyer is subject to discipline for under ABA Model Rule 3.1. The statute of
attempting to prospectively limit malprac- limitations merely destroys the remedy and
tice liability by contract with a client. The not the right. Unless the defendant pleads
ABA Model Rules provide an exception if the statute of limitations, the claim is valid.
the client secures independent counsel in Thus, (A) is correct. (B) and (C) are incor-
making the agreement. That exception does rect; there is no duty to inform the court
not apply here. (A) is incorrect because that the statute of limitations has run.
 PRACTICE EXAM 3 365.

Answer to Question 49 (D) is wrong because the attorney is not

neutral; he was called into the matter by
(A) ABA Model Rule 7.2(b) provides that, the contractor, his most lucrative client.
subject to certain exceptions, a lawyer must ABA Model Rule 2.4(a) says that a lawyer
not give anything of value to a person for can serve as a third-party neutral when he
recommending the lawyer’s services. Thus, “assists two or more persons who are not
(A) is correct, and (D) is incorrect. (C) is clients of the lawyer to reach a resolution
incorrect. Although there is an exception of a dispute or other matter that has arisen
that allows a lawyer to give a person a between them.” (B) and (C) draw upon
nominal gift as an expression of appre- comments 26 - 33 to ABA Model Rule 1.7,
ciation for recommending the lawyer’s concerning concurrent conflicts of interest
services, such gifts must not exceed what between two clients in a non-litigation
would be given at a holiday or in the course matter. Here, the attorney cannot reason-
of ordinary social hospitality. A European ably believe that he can represent the
vacation is not a nominal gift. (B) is incor- couple competently and diligently in negoti-
rect because a lawyer generally must not, ating with the contractor, his longtime and
personally or through a representative, most lucrative client. [See ABA Model Rule
initiate live person-to-person contact with 1.7(b)(1)] Moreover, the interests of the
an individual known to need legal services contractor and the couple are so “funda-
in a particular matter, for the purpose of mentally antagonistic” that the conflict is
offering legal services in that matter. [ABA “unconsentable.” [Comment 28 to ABA
Model Rule 7.3(b)] Model Rule 1.7]

Answer to Question 50 Answer to Question 52

(C) CJC Rule 3.11(B) states that generally (C) ABA Model Rule 8.5(a) permits State A
a judge must not serve as a manager or to discipline an out-of-state lawyer “if the
employee of a business. Thus, the activity lawyer provides or offers to provide any
in (C) is an improper activity for a judge. legal services” in State A. Here, the attor-
On the other hand, judges are encour- ney’s environmental law work for the Forest
aged to engage in appropriate extrajudicial Service is proper under ABA Model Rule
activities, such as teaching. [CJC Rule 5.5(d)(1) because she is providing that
3.1, comment 1] Thus, (A) is proper. (B) work only to her employer-client, and the
is proper because the CJC does not forbid work does not require pro hac vice admis-
extrajudicial activities that do not interfere sion in State A. However, State A could
with a judge’s official duties. [See CJC Rule discipline her for moonlighting as an estate
3.1(A)] (D) is proper because although a planner; she is not providing that work
judge is not permitted to practice law, a to her employer-client, even though her
judge may “give legal advice to and draft estate planning clients are Forest Service
or review documents for a member of the employees. [Comment 16 to ABA Model
judge’s family.” [See CJC Rule 3.10] Rule 5.5] Thus, (C) is correct, and (A) is
wrong. (B) is wrong for the same reason.
Answer to Question 51 The attorney’s day job for the Forest
Service “does not authorize the provision
(B) (A) is wrong because a contingent fee can
of personal legal services to the employer’s
be proper even if there is no res—no pool
officers or employees.” [Id.] (D) is wrong.
of money—from which the fee can be
The moonlighting part of it is correct, but
paid. [See ABA Model Rule 1.5(c), (d)]
366. PRACTICE EXAM 3

the remainder is not. As indicated above, the the same is true for many other legal ethics
attorney’s environmental law work is proper rules.
under ABA Model Rule 5.5(d)(1) because
she is providing it only to her employer- Answer to Question 54
client.
(B) ABA Model Rule 7.6 says that a lawyer must
Answer to Question 53 not accept an appointment made by a judge
if the lawyer makes a political contribu-
tion “for the purpose of obtaining or being
(A) The general rule is that a lawyer must
considered for” that type of appointment.
not give anything of value to a person for
The question states that the attorney would
recommending the lawyer’s services. [ABA
not have made the contributions but for the
Model Rule 7.2(b)] Referral of business is
advice he obtained from his friend; that is
certainly something of value, so the attor-
sufficient proof of his improper motive. [See
ney’s agreement with the bondsman would
comment 5 to ABA Model Rule 7.6] (D)
violate the general rule unless an exception
is wrong for the reason stated above. (A) is
applies. The attorney might try to invoke
wrong. Common law bribery is the giving
the exception stated in ABA Model Rule
of money, or something else of value, in
7.2(b)(4), which permits a lawyer to have a
return for a specified act by a judge or other
reciprocal referral agreement with another
public official; the person on the receiving
lawyer, or with a nonlawyer professional,
end also commits common law bribery. The
if two conditions are satisfied. Before
attorney’s contributions are improper under
examining the two conditions, one must
ABA Model Rule 7.6, whether or not they
first decide whether a bail bondsman is
rise to the level of common law bribery. [See
a “professional.” Black’s Law Dictionary
comment 6 to ABA Model Rule 7.6] (C) is
defines “profession” as a vocation that
wrong because ABA Model Rule 7.6 limits
requires a high level of training and profi-
one specific kind of participation in the polit-
ciency. [Black’s Law Dictionary (10th ed.
ical process—so-called pay-to-play political
2014)] ABA Model Rule 7.2(b) would be
contributions.
served by including a state-licensed and
regulated bail bondsman as a “profes- Answer to Question 55
sional.” That brings us to the two condi-
tions. First, a reciprocal referral agreement (C) This question is governed by ABA Model
must be nonexclusive—i.e., each party must Rule 6.5, which relaxes the ordinary
be free to refer a person to a competitor of conflict of interest rules for legal service
the other party. Second, the referral agree- programs that offer quick legal advice to a
ment must be disclosed to the person who client without expectation that the lawyer
is referred. The agreement between the will continue representing the client.
attorney and the bondsman fails to satisfy ABA Model Rule 6.5(a)(2) states that the
the second condition, and perhaps the first ordinary rule of imputed disqualification
as well. (B) is wrong because it overstates will apply only if the lawyer who offers the
the general rule expressed in ABA Model quick legal advice knows that a different
Rule 7.2(b). (C) is wrong because the lawyer in her firm would be disqualified
agreement must be disclosed, whether or by a conflict, and “knows” means actually
not it changes what the attorney would knows. Here, the volunteer lawyer did
do absent the agreement. (D) is wrong not know that the attorney had advised
because the attorney’s free speech rights the manufacturer on the matter; indeed,
are trumped by the legal ethics rule, and she was a new associate and did not even
 PRACTICE EXAM 3 367.

realize that the manufacturer was one of Answer to Question 57

the firm’s clients. Therefore, the volunteer
lawyer acted properly in advising the fired (C) ABA Model Rule 1.17 permits a practicing
worker. (A) is wrong because the question lawyer to sell his entire law practice or
does not supply any facts that would an area of his law practice to one or more
support a valid legal malpractice claim or lawyers or law firms. That is what the
other civil claim against either the volun- attorney did here shortly before becoming
teer lawyer or the law firm. (B) is wrong a judge. One of the conditions speci-
because ABA Model Rule 6.5 recognizes fied in ABA Model Rule 1.17 is that the
that quick-service providers cannot realisti- seller must cease “to engage in the private
cally perform the thorough conflicts checks practice of law . . . in the [jurisdiction or
that private firms perform. (D) is wrong geographic area] in which the practice
because the volunteer lawyer’s legal advice has been conducted.” [ABA Model Rule
to the fired worker will not disqualify the 1.17(a)] The attorney satisfied that condi-
attorney from representing the manufac- tion by becoming a judge—engaging
turer in later litigation. [See comment 4 to in judicial duties does not constitute the
ABA Model Rule 6.5] private practice of law, nor does working as
a government lawyer, lawyer for the poor,
Answer to Question 56 or an in-house lawyer for a business. [See
comments 2 and 3 to ABA Model Rule
(D) Comment 5 to ABA Model Rule 5.7 states: 1.17] The attorney’s re-entry into private
“When a client-lawyer relationship exists practice does not violate ABA Model
with a person who is referred by a lawyer Rule 1.17 because it was caused by an
to a separate law-related service entity “unanticipated change in circumstances”—
controlled by the lawyer, individually or i.e., his failure to win re-election. [See
with others, the lawyer must comply with comment 2 to ABA Model Rule 1.17, which
Rule 1.8(a).” ABA Model Rule 1.8(a), in uses re-election defeat as an example of
turn, says that when a lawyer enters into a “unanticipated change”] (A) is wrong for
business transaction with her own client, the reason just stated. (B) is wrong because
she must (1) disclose the terms to the client ABA Model Rule 5.6 (the rule that prohibits
in an understandable writing, (2) give agreements that restrict a lawyer’s right to
the client a chance to consult independent practice) does not apply to agreements that
counsel, and (3) obtain the client’s consent are ancillary to the sale of a law practice.
in writing. The attorney did not do those [Comment 3 to ABA Model Rule 5.6] (D)
things, so her conduct was not proper. (B) is wrong because the law of the state makes
is wrong for the same reason. (C) is not the attorney’s agreement not to compete
as good as (D) because (C) overlooks the valid if it is reasonable in duration and
circumstances that would make it proper geographic scope.
to enter into a business transaction with
one’s own client. (A) is wrong because it Answer to Question 58
misses the point. Accounting service is a
“law-related” service, and the attorney and (D) (A), (B), and (C) are true. (A) is true
the other two partnership owners control because ABA Model Rule 1.16(b)(4)
the accounting firm. Thus, if the attorney permits a lawyer to withdraw if the client
recommends the accounting firm, she must insists upon taking action that the lawyer
take the precautionary steps outlined in considers repugnant or with which the
ABA Model Rule 1.8(a). lawyer has a fundamental disagreement.
368. PRACTICE EXAM 3

(B) is true because of the attorney’s ethical necessary to prevent or rectify a securities
duty of confidentiality. The duty has some act violation (or similar law violation) that
exceptions, but none of them quite fits is likely to cause substantial financial injury
this situation. One might argue that ABA to the client or its shareholders. (A) and (C)
Model Rule 1.6(b)(2) fits because the are wrong because the regulation permits,
attorney could reveal the candidate’s evil but does not require, the attorney to alert
plan in order to prevent “substantial injury the SEC. (D) is wrong because the SEC
to the financial interests or property of regulations purport to preempt any incon-
another.” Perhaps the candidate’s opponent sistent state ethics rules. [See 17 C.F.R.
has a financial interest in being elected §§205.1, 205.6(c)] (It remains to be seen
to the post. However, there is nothing in whether courts will uphold the SEC’s effort
the attorney’s services to form or carry to preempt the field and override inconsis-
out the evil plan, and that is an important tent state ethics rules.)
requirement of ABA Model Rule 1.6(b)
(2). Even if ABA Model Rule 1.6(b) Answer to Question 60
(2) would permit the attorney to reveal
the confidential information, it does not (A) The granddaughter hired the oil and gas
require him to do so—it gives the attorney attorney to evaluate her title for the use of
discretion as to whether to reveal. [See a third party, the petroleum exploration
comment 15 to ABA Model Rule 1.6] (C) and drilling company. ABA Model Rule
is true because ABA Model Rule 1.6(b) 2.3 governs this kind of representation.
(5) allows a lawyer to reveal confidential ABA Model Rule 2.3(b) states that when
information “to establish a defense to a the lawyer knows (or should know) that
criminal charge or civil claim against the representation will harm the client,
the lawyer based upon conduct in which the lawyer should not provide the evalu-
the client was involved, or to respond to ation without first obtaining the client’s
allegations in any proceeding concerning informed consent. The granddaughter
the lawyer’s representation of the client.” apparently told her attorney at the outset
The lawyer’s right to disclose in self- to send the evaluation to the company, but
protection does not require that a criminal the granddaughter did not know at that
charge, civil complaint, disciplinary case, point what the evaluation would show.
or other formal proceeding has already One purpose for the attorney to obtain her
started. “The lawyer’s right to respond client’s informed consent before sending
arises when an assertion of complicity has the letter to the company is to give her a
been made.” [Comment 10 to ABA Model chance to obtain a second opinion from
Rule 1.6] The opponent’s press conference a better oil and gas lawyer; perhaps it is
and the newspaper story amply satisfy that the attorney who fouled up rather than the
requirement. For the same reasons, (D) is grandfather’s lawyer. (B) is wrong because
false. ABA Model Rule 2.3 permits a lawyer to
undertake an evaluation for a third party,
Answer to Question 59 and the third party’s interests are quite
commonly in concurrent conflict with those
(B) The SEC’s regulations under the Sarbanes- of the client. (C) is wrong because the
Oxley Act permit, but do not require, a granddaughter’s prior authorization is not
securities lawyer to reveal a client’s confi- enough; her attorney should have obtained
dential information to the SEC when the informed consent after she discovered that
lawyer reasonably thinks that doing so is the letter would harm her. [See ABA Model
 PRACTICE EXAM 3 369.

Rule 2.3(b) and comment 5] (D) is wrong

because, if the attorney never sent the
opinion letter to the company, she would
have no duty to disclose anything to the
company.
 PRACTICE EXAM 4 371.

PRACTICE EXAM 4

Question 1 Question 2

An attorney is prosecuting a complex tax A judge ruled in favor of a plaintiff in a civil

case. After two government witnesses testified, action where the defendant was ordered to pay
the defendant took the stand in his own defense. the plaintiff $50,000 in damages. The judge has
He asserted that he always complied with all since resigned from the bench. The defendant
tax rules and regulations. He also testified that has refused to pay the $50,000, asserting that the
the two government witnesses had deliberately verdict was obtained through improper means.
falsified his Internal Revenue Service records The defendant asks the judge, now in private
because the witnesses belonged to a Satanic cult practice, if she will represent him.
which bore a long-standing grudge against him.
Would the judge be subject to discipline if she
Which of the following statements about the represents the defendant?
defendant’s testimony, if made by the attorney in
her closing argument, would make the attorney (A) No, because the judge is no longer on the
subject to discipline? bench.

(A) “The defendant’s testimony is clearly in (B) No, because the judge was not a party to
conflict with the testimony of two govern- fraud when the original verdict was handed
ment witnesses.” down.

(B) “Of the persons who have given testimony, (C) Yes, because the judge ruled on this case
who has the better reason to lie, the defen- when she was a judge.
dant or the government’s witnesses?”
(D) Yes, because former judges may not engage
(C) “If you believe the testimony of the defen- in private practice.
dant, you will also believe that the moon is
made of green cheese!”

(D) “I know you will consider the evidence

carefully and reach a reasonable conclu-
sion.”

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372. PRACTICE EXAM 4

Question 3 Question 4

An attorney has hired a third-year law student The mayor of a small city is also a licensed
to assist him as his clerk. The law student is attorney who has a law partnership with a fellow
not licensed under any state law or court rule attorney in the city. Under the city’s charter,
that allows third-year law students to engage the mayor has the authority to determine what
in practice under the supervision of a licensed issues are to be placed upon the agenda of the
attorney. The attorney has permitted the law city council. Several council members have told
student to perform a variety of tasks. the mayor that they would like to see a particular
zoning measure placed upon the agenda. This
For which of the following tasks that the proposed ordinance would ban commercial
attorney has the law student perform would the development of a certain area within the city
attorney be subject to discipline? limits.

(A) Drafting a release form for personal injury The mayor’s law partner has been retained
plaintiffs to sign after their cases have been as attorney for a development company that has
settled. (The attorney himself has the plain- acquired land in the proposed noncommercial
tiffs sign the forms.) zoning area and has plans to construct a large
shopping center there. The mayor has agreed to
(B) Interviewing witnesses to accidents, and take no direct role in the representation, not to
having them sign the law student’s written share any fees from the case, and not to attend
version of the interview. any city council meetings at which the matter
will be discussed.
(C) Reaching settlement agreements with insur-
ance company representatives before suit May the mayor’s law partner represent the
has been filed. development company in this matter?
(D) Undertaking legal research and drafting (A) Yes, because the development company is
research memoranda. not a client of the mayor.

(B) Yes, because the mayor will not be present

at any city council meetings at which the
matter is discussed.

(C) No, because of the mayor’s position as

mayor.

(D) No, because the mayor will have no direct

role in the representation and will not share
in any fees from the case.

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 PRACTICE EXAM 4 373.

Question 5 record time—which panicked the lawyers for the

corporation and ultimately resulted in an extraor-
An attorney represented a fired employee, a dinarily generous settlement for her new client.
“service station field representative,” of a petro- The attorney, of course, took her share of the
leum corporation in a wrongful discharge action settlement under the contingent fee arrangement
against the corporation. Such representatives and thus profited personally from her former
are responsible for visiting and inspecting the client’s information.
corporation’s service stations to ensure that the
station operators are obeying the terms of their Is the attorney subject to civil liability to her
leases; following the corporation’s rules about former client for using his confidential informa-
retail gasoline pricing; keeping full stocks of the tion for her own monetary benefit?
corporation’s brand of tires, batteries, and acces-
sories; not carrying competitors’ tires, batteries, (A) No, because the attorney’s recycling of the
and accessories; and maintaining the stations in information did not harm her former client;
a clean and attractive condition. The corporation she simply took advantage in her law prac-
claimed that it fired the employee for poor job tice of her earlier experience and accumu-
performance, but he claimed that he was fired lated knowledge.
because he refused to enforce certain corpo-
rate policies that he believed were violations of (B) No, because her former client ceased being
federal and state antitrust laws. In the course of the attorney’s client at the time he settled
preparing the case for trial, the attorney and the his case with the corporation, and the attor-
employee talked in confidence at great length ney’s duty of confidentiality ended when the
about how the corporation expects its field lawyer-client relationship ended.
representatives to enforce its allegedly anticom-
petitive rules against service station operators. (C) Yes, because the attorney did not obtain
Shortly before trial, the corporation settled with informed consent, confirmed in writing,
the employee for a generous sum. He did not, from her former client before using his
however, return to his job at the corporation, nor information to hasten her preparation of her
has he communicated with his attorney since the new client’s case.
case ended.
(D) Yes, because the contingent fee arrange-
Now, three years later, a service station ment allowed the attorney to profit person-
operator of the same corporation has hired the ally from material disclosed to her in
attorney to represent him in a federal antitrust confidence by her former client.
action to collect treble damages from the corpo-
ration for subjecting him to the very same
anticompetitive policies that cost her former
client his job. The attorney is handling her
new client’s case on a contingent fee basis. In
preparing his case for trial, the attorney was able
to save many hundreds of hours of discovery
and research work because of the information
she learned in confidence from her former client
about the way the corporation treats its service
station operators. Thanks to what he taught her
about the corporation’s business practices, the
attorney was ready for her new client’s trial in

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374. PRACTICE EXAM 4

Question 6 (D) No, because the attorney did not know

he would be seated next to the plaintiff
An attorney is representing a defendant in a and asked to have the seating assignment
civil case that arose out of a business deal gone changed as soon as he discovered it.
sour. One evening after court was out of session,
but with the trial set to resume the next day, the Question 7
attorney attended a $5,000 per person charity
fundraising dinner. When he found his assigned An attorney represents the plaintiff in a
seat, he was shocked to find that he was seated personal injury case. The plaintiff has autho-
next to the plaintiff in the suit. The attorney rized her attorney to settle the case for $2,000.
asked the hostess if she could change his seat, She further tells him that if he receives $2,000
but she said it would be impossible. Determined from the defendant, he may keep $750 of it as
to make the best of it, the attorney and the plain- his fee, and that he should pay the physician
tiff did not discuss the case but made small talk who examined her $250 for his examination and
about the charity, the weather, etc. They soon treatment of her injuries. The attorney reaches
found that they had much in common, including a $2,000 settlement with the defendant. Upon
a love of sports. After a long, enjoyable evening receipt of a $2,000 check from the defendant,
of discussing their favorite teams, the plaintiff the attorney immediately places $750 in his
gets up to leave. He turns to the attorney, and personal account, sends the plaintiff’s physi-
says he has enjoyed talking with him, and says cian a check for $250, and places $1,000 in his
that he intends to call his attorney first thing in clients’ trust account at the local bank. Sixty
the morning to talk about reaching an agreeable days after the attorney received the $2,000
settlement in the case. The next day, the plaintiff check, his client calls him to inquire about any
calls his lawyer and tells her that after talking progress made on a settlement of her case. The
to the defendant’s attorney the evening before attorney tells her that he has settled the case and
at a fundraiser, he has decided to settle the case paid her physician. Immediately after he hangs
for the amount proposed in the last negotiating up the phone, he writes out a check to his client
session. The plaintiff then instructs his lawyer in the amount of $1,000 and mails the check on
to draw up the appropriate papers. Furious, the his lunch hour.
plaintiff’s lawyer does as her client asks, but
reports the defendant’s attorney to the proper Is the attorney subject to discipline?
disciplinary authorities.
(A) Yes, because he paid himself his fee with-
Is the defendant’s attorney subject to disci- out informing his client.
pline?
(B) Yes, because he did not promptly pay his
client the money due her.
(A) Yes, because he communicated with a rep-
resented party without the consent of that (C) No, because he placed the funds due his
party’s attorney. client in the trust account.
(B) Yes, because this is an improper ex parte (D) No, because he was negligent but did not
communication while the matter is still violate a disciplinary rule.
pending.

(C) No, because they discussed the charity, the

weather, and sports.

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 PRACTICE EXAM 4 375.

Question 8 Question 9

An attorney represents a plaintiff in a personal A wife whose husband was hard-drinking and
injury suit arising out of a tour bus accident abusive went to see an attorney about getting
in Hawaii. Nearly all of the eyewitnesses a divorce. However, because the wife did not
were tourists who have now returned home to work outside the home, she told the attorney that
the mainland. Without notifying the defense she could not afford to pay a big legal fee. The
attorney, the plaintiff’s attorney has interviewed attorney was sure that the wife had adequate
most of the witnesses by phone. By far the most grounds for divorce in that her husband was
compelling witness, and the one most favorable adulterous, an alcoholic, and frequently beat her.
to the plaintiff, is a librarian who lives in North Therefore, the attorney told the wife that if she
Dakota and had spent the bulk of her life savings could put up the $200 filing fee, he would do
on a vacation to Hawaii. It was on this vacation all the work for 10% of whatever he was able
that she witnessed the tour bus accident. She to obtain in alimony and child support on her
is a very appealing witness, and the attorney is behalf. The wife was elated and immediately
confident that if a jury saw her testify personally, agreed to the arrangement, thanking the attorney
the plaintiff would win his suit. The attorney profusely. The attorney left his office that night
tells the witness that if she is willing to come with a warm feeling that he had helped a fellow
to Hawaii for one week to testify, he will pay human being, secure in the knowledge that at
for her plane tickets, an oceanfront hotel room least one person in the community would have
at a first class hotel, all meals, and one week’s something nice to say about lawyers.
salary for her lost time. This is the same offer
that the attorney makes to all witnesses traveling Personal satisfaction aside, was the attorney’s
to testify in any of his cases. The witness, who conduct proper?
cannot believe her good fortune, readily agrees.
(A) Yes, because the fee is reasonable and is
Is the attorney subject to discipline? not excessive.

(A) Yes, because a lawyer may not offer an (B) Yes, because the attorney is providing legal
inducement to a witness to testify. services to a person who might not other-
wise be able to afford them.
(B) Yes, because he interviewed the witnesses
without notifying the defense attorney. (C) No, because a contingent fee arrangement
is prohibited when the fee is based on the
(C) No, because a lawyer may pay a witness’s amount of alimony or a division of marital
reasonable expenses and lost wages. property.

(D) No, because the trip and accommodations (D) No, because the wife was indigent and
are substantially more expensive than the the attorney should have advanced her the
witness could afford. filing fees.

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376. PRACTICE EXAM 4

Question 10 (A) Inform his law partner of what his client

has told him and continue to represent his
A local attorney has recently defended a client client.
in a civil action tried before a jury. The client
lost the case, and the plaintiff was awarded a (B) Inform his law partner of what his client
substantial amount of damages. The attorney has told him and withdraw from repre-
receives an anonymous, handwritten letter stating senting his client.
that one of the jurors in the plaintiff’s case was
bribed to influence other members of the jury to (C) Not inform his law partner and continue
side with the plaintiff and to award a large sum in representation.
damages. The lawyer hires a local private inves-
tigator to investigate the juror to determine if the (D) Not inform his law partner and withdraw
anonymous charges are true, and instructs the from representation.
investigator to take care to do nothing that would
involve coercion or harassment. Question 12
Is it proper for the attorney to hire the private An attorney is embittered because he has
investigator? recently had to expend a great deal of time and
money defending himself against a frivolous
(A) No, because the investigator did not notify
malpractice suit brought by a disgruntled former
the juror in question of his investigation
client. To forestall such suits in the future, the
and did not obtain her consent.
attorney decides to take extra precautions.
(B) No, because such an investigation is likely
to affect the willingness of the jurors to Which of the following arrangements could
serve on juries in the future. the attorney enter into with clients without being
subject to discipline?
(C) Yes, because the investigation may disclose
evidence sufficient for the granting of a new (A) With the client’s knowledge, taping a clos-
trial. ing interview, during the course of which
the attorney explains to the client each
(D) Yes, because the investigation is to be aspect of his handling of the case and asks
conducted in such a manner as not to harass the client if she understands fully the expla-
the jurors. nation, or if she has any further questions
Question 11 about the case.

An attorney and his law partner each repre- (B) Agreeing to represent a client for no fee or
sent a criminal defendant in seemingly unrelated for a low fee if the client promises not to
cases. During the attorney’s interview with sue him for malpractice.
his client, the client tells the attorney that
he was involved in the crime with which the (C) Refusing to return a client’s papers until
other criminal defendant is charged and that the client signs a release of liability for
he is willing to testify against him if he can malpractice.
be granted immunity from prosecution on that
charge and plea bargain the crime with which he (D) Reserving the right to withdraw from
is presently charged down to a lesser offense. representing a client at any time during the
representation, whenever he gets a feeling
Which of the following courses of action is that the client might mean trouble for him.
proper for the attorney?

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 PRACTICE EXAM 4 377.

Question 13 Question 14

An attorney has an arrangement whereby a A law firm represents a successful

local radio station broadcasts four times each businessman who has given the firm almost
day a prerecorded tape advertising her services. all of his substantial legal business. The
The attorney pays the station its standard rate businessman is presently involved in complex
for “spot advertising.” The advertisement states civil litigation in which he stands to receive a
that the attorney will handle bankruptcies for large damages award if the suit is successful.
$150 and uncontested divorces where there are The attorney for the defendant in the case has
no custody or property issues for $250 plus the filed a motion that, if granted, would result in
filing fee. The ad also states that she will take dismissal of the suit. The named partners of the
personal injury cases on a contingency fee basis, law firm have studied the motion and feel that
and that her fee is 30% of the amount recovered there is some merit in the motion, and at least
after deduction for costs. The ad concludes by a 50% chance that the judge who is trying the
inviting prospective clients to make an appoint- case will rule in favor of the defendant. During
ment for a free consultation regarding their case. the course of explaining the defendant’s motion
to the businessman, the two named partners
Is the attorney’s advertising proper? call in a recently hired associate. The associate
is the judge’s former law clerk, and he wrote
(A) No, because a lawyer may not advertise several speeches for her when she was running
contingent fees. in a contested reelection campaign. The partners
tell the businessman that it would be to his
(B) No, because the attorney does not appear to advantage for the associate to argue against the
be a certified specialist in personal injury motion. The associate, during the course of the
law. meeting with the businessman, tells him that the
judge owes him a favor.
(C) No, because the attorney advertises free
consultations. Is the associate subject to discipline?
(D) Yes; there is nothing wrong with the attor- (A) Yes, because his statement implies that the
ney’s advertising. judge will give him preferential treatment
due to their past association.

(B) Yes, because he plans to use his knowledge

of the judge’s character to his advantage.

(C) No, because he did not expressly state that

the judge would rule in his favor.

(D) No, because he does not plan to use

improper influence on the judge.

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378. PRACTICE EXAM 4

Question 15 that the defendant had copied its copyrighted

material in January. As a sanction for destroying
In April, a plaintiff sued a defendant in United evidence, the judge entered a partial summary
States District Court for infringement of its judgment in favor of the plaintiff on the copying
copyright on a computer software program that issue. The judge also sanctioned defense counsel
protects computer data from being destroyed by by ordering him to pay all of the expenses and
so-called computer viruses. The plaintiff alleges attorneys’ fees that the plaintiff had incurred due
in its complaint that the defendant infringed the to the defendant’s two acts of destruction.
copyright by copying its anti-virus program in
January. In August, the plaintiff filed a document Was the judge correct in holding defense
discovery request that asked the defendant to counsel subject to litigation sanction?
hand over a copy of the “source code” of its own
anti-virus program as it existed in January. The (A) Yes, as respects the destruction in Septem-
source code is the precise material written in ber (after the plaintiff’s document request),
computer language by the programmer. Only but no, as respects the June destruction
by comparing source codes could a person be because the plaintiff did not request the
sure whether one software program had been source code until August.
copied from another program. Source codes are
therefore vital evidence in software copyright (B) Yes, because in both June and September,
infringement cases, and all competent lawyers defense counsel either knew or ought to
who work in the field know that fact. have known that the January source code
was vital evidence.
As is customary in the computer industry,
the defendant periodically creates improved (C) No, because there is no evidence that
versions of the computer software it sells. defense counsel intended to commit a
Whenever the defendant creates an improved fraud on the court by allowing his client to
version, it routinely destroys the source code of destroy the January source code.
the former version, keeping only the source code
of the improved version. This routine destruc- (D) No, because defense counsel did not
tion is the customary practice in the computer actively encourage his client to destroy the
industry. In June, and again in September, the January source code.
defendant created improved versions of its anti-
virus program. On both occasions, the defendant
asked its lawyer whether it would be all right
to destroy the former source code. Without
giving the matter much thought, the lawyer
responded on both occasions: “Sure you may.
It’s the routine practice in the industry, and I see
no problem with it.” In due course, the plaintiff
moved for a court order to enforce its document
discovery request for the January source code. In
response, defense counsel turned over the then-
current version of the source code and explained
why the January version was no longer available.

After a detailed factual hearing, the judge

concluded that the defendant’s two acts of destruc-
tion made it impossible for the plaintiff to prove

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 PRACTICE EXAM 4 379.

Question 16 suggested that she contact another attorney. The

client advises the attorney that because the other
An attorney worked for two years for the lawyer did not return her calls, she had sent a
Veteran’s Administration (“VA”). While there, certified letter to him notifying him that he was
his main function was to investigate claims filed discharged. The attorney knew that there was
by veterans. During the course of his employ- only a one-year statute of limitations on this type
ment, he was responsible for investigating a of action, so she quickly checked the dates and
claim filed by a veteran whose claim was denied discovered that she had only a few days to file the
by the VA after the attorney left his job there. action. The attorney called the other lawyer to get
He was not privy to confidential information the information from the client’s file. The other
regarding the veteran. The veteran comes to the lawyer did not recall the letter of discharge and
lawyer, who is now engaged in private practice, was surprised to get the attorney’s call. He was,
and asks him to represent him in a suit against however, very cooperative and agreed to send a
the VA for the benefits to which the veteran messenger to the attorney’s office with the client’s
believes he is entitled. file. The other lawyer tells the attorney that he
feels terrible about the situation, that his wife has
Is the attorney subject to discipline if he been seriously ill, and that as a result he has not
accepts the veteran’s case? been himself. He asks the attorney to apologize
to the client on his behalf, but asks the attorney to
(A) No, because the attorney has left the VA. please keep this conversation “between the two of
us.” He says that with his wife’s illness, he cannot
(B) No, because the attorney was not privy afford to lose any other clients.
to confidential information regarding the
veteran, arising from his employment at the The attorney filed the papers in her client’s
VA. suit on time, and did not report the other lawyer
to the disciplinary authorities.
(C) Yes, because the attorney had at least some
knowledge of the veteran’s claim when he Were the attorney’s actions proper?
was employed by a government agency. (A) Yes, because she is an attorney, and the
other lawyer asked her to keep the matter
(D) Yes, because the attorney had substantial
confidential.
and personal responsibility for the veteran’s
VA claim. (B) Yes, because it is the client’s decision
whether to report the other lawyer to the
Question 17 disciplinary authorities.
A woman visits an attorney whom she hires to (C) No, because the other lawyer’s actions
bring a breach of contract action on her behalf. indicate that he is not currently fit to
The client tells the attorney that she originally practice law.
retained another lawyer about a year ago, but
that as far as she knew he had not even filed the (D) No, because she did not urge her client to
papers. According to the client, the other lawyer report the other lawyer to the appropriate
never returned her calls, and when she went to authorities.
his office to find out the status of her case, he
was drunk and verbally abusive. The client told
her friends and family about the other lawyer’s
treatment of her, and when her brother fared
no better in getting information from him, he

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380. PRACTICE EXAM 4

Question 18 Question 19

A law school graduate who is not a licensed A long-term named partner in a law firm was
member of the bar felt called to the ministry approached by officials of his political party
after he graduated from law school. He received about running for governor of the state, and
a degree in divinity, and was formally ordained after some deliberation, decided to run. The law
as a minister of his faith. He is now the pastor of partner won both the primary and the general
a local church, where an attorney is a member election and was recently sworn in as the state’s
of the congregation. As pastor, he has been very new governor. Although the law partner has
disturbed about the high rates of divorce and the made it clear to his other law partners and the
breakdown in American family life. Therefore, public that he will not practice law during his
he holds frequent “family counseling sessions” tenure as governor, he still has fees coming due
where, among other things, he explains to the from prior cases and the senior partner of his
parishioners who attend these sessions many firm has decided to leave the law partner’s name
of the legal ramifications of divorce, alimony, on the firm’s stationery and on the door of the
child support, and child custody. These sessions firm’s plush offices.
are usually followed by question-and-answer
periods, during which the pastor gives legal Is the senior partner’s decision proper?
advice to parishioners who cannot afford a
lawyer. The pastor knows that the legislature (A) Yes, because the now-governor would still
has passed a new marriage dissolution law that have fees coming due from prior cases.
changes the law substantially from what he
was taught in law school. The pastor asks the (B) Yes, because the now-governor had been a
attorney who is a member of the congregation if member of the firm for a period of at least
he will prepare an outline and a memorandum five years prior to his election as governor.
fully explaining the new law so that he will be
better informed for the sessions with his parish- (C) No, because the now-governor is not
ioners. actually practicing with the firm.

If the attorney agrees to do this, is he subject (D) No, because it may create the appearance
to discipline? that the firm has special influence with the
state government.
(A) Yes, because the pastor may bring the attor-
ney before the State Bar Disciplinary Com-
mittee if the attorney makes any mistake of
law in the memorandum.

(B) Yes, because the attorney is assisting in the

unauthorized practice of law.

(C) No, because the attorney has a duty to help

educate the public regarding the law.

(D) No, because marriage counseling is an

important part of the pastor’s duties as
pastor.

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 PRACTICE EXAM 4 381.

Question 20 offer to the attorney: The client promises to

pay the attorney $30,000 in advance for three
A local assistant district attorney (“ADA”) has months if the attorney agrees not to work on
just finished prosecuting a case against a defen- other cases during that period of time, it being
dant who was accused of committing a serious determined that the attorney’s usual income
felony. The ADA believed he had a strong case, from fees for a three-month period was $30,000.
but a judge trying the case ruled to acquit the The attorney agreed to this arrangement and
defendant. The judge is running for reelection proceeded to work on the client’s case only.
in a contested campaign. The judicial election During the first month that he was preparing
will occur in two months. Immediately after the the client’s case, the attorney was approached
defendant’s trial is over, the ADA holds a press by more than the usual number of prospective
conference, at which he says that the defendant clients. Had he accepted employment from those
was acquitted due to the erroneous rulings of the who asked him to represent them during this
judge. The ADA also says that in every case he period, he would have received $30,000 in fees
has had before that judge, the judge has made from them. The attorney, however, in compli-
clearly erroneous rulings in favor of the defen- ance with his agreement with the client, refused
dant. Accordingly, the ADA says he intends to to take on any of these prospective clients. At the
work hard for the judge’s opponent in the forth- end of the first month, the attorney and the client
coming judicial election. had a conference to discuss the case. A number
of points of disagreement arose between them;
The ADA has personally tried four cases in the client became angry, and summarily fired the
front of the judge. attorney as his counsel. The client demands the
return of the $30,000 fee advance.
Is the ADA’s statement during the press
conference proper? Which of the following best describes proper
conduct for the attorney?
(A) No, because the ADA is a public official
and he should not have criticized another (A) Retain nothing because the work was not
public official. completed to the client’s satisfaction.
(B) No, because the ADA has brought the (B) Retain an amount that represents fair
administration of justice into disrepute. compensation for work actually performed
on the case.
(C) Yes, because the ADA spoke out after the
verdict had been rendered. (C) Retain the entire $30,000 because the
attorney turned away business worth
(D) Yes, because the public needs to be $30,000 to devote his full attention to the
informed about incompetent judges. client’s case.
Question 21 (D) Retain the entire $30,000 because the
client, not the attorney, breached the agree-
A client brings an extremely complicated case ment.
to his attorney. This case is so complex that it
will require the undivided attention of a quali-
fied attorney for three months to do the neces-
sary research, draw up the proper papers, and
take the case to trial. The client, realizing the
complexity of the case, makes the following

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382. PRACTICE EXAM 4

Question 22 Question 23

A judge who was considered a great personal An attorney and her client agree that the
injury litigator when he was in private practice attorney will represent the client for a contin-
is trying a very complicated commercial law gent fee of 25% of any eventual settlement or
case. He has carefully listened to the opposing judgment in the client’s personal injury action.
attorneys’ arguments and has read the briefs The case comes to trial, and the judgment
several times. He has found neither the oral awarded is $20,000. The day after the trial, the
arguments nor the briefs to be very enlightening. client calls the attorney and tells her that her
A former law partner of the judge is considered brother-in-law’s cousin, who is a file clerk for an
to be one of the leading experts on commercial insurance company, told her that her claim was
law in the state, and the judge wishes to lend worth at least $40,000. The client says that the
the briefs to her, and have her write an advisory attorney did a poor job of representing her, and
memorandum on the issues of the case. The does not deserve any fee for obtaining an award
judge sincerely feels that this will enable him of only $20,000. That afternoon, a check for
to render a proper judgment in a difficult case, $20,000, payable to the attorney from the defen-
so he approaches his former law partner and dant, arrives in the attorney’s office.
obtains her help.
It would be proper for the attorney to:
Was it proper for the judge to seek such help
from his former law partner? (A) Deposit the entire $20,000 in her client
trust account until the matter is resolved.
(A) Yes, because the judge sincerely believed
such advice was needed. (B) Send $15,000 to the client and deposit
$5,000 in her client trust account.
(B) Yes, because a judge may seek outside
advice on any case. (C) Send $15,000 to the client and deposit
$5,000 in her personal account.
(C) No, because he did not give notice to the
parties and allow them time to respond to (D) Compromise by sending $17,500 to the
the former law partner’s memorandum. client and depositing $2,500 in her personal
account.
(D) No, because he did not obtain written
permission from the parties prior to the
consultation.

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 PRACTICE EXAM 4 383.

Question 24 Is the attorney subject to discipline for negoti-

ating with the woman?
An attorney has been retained by a wealthy and
socially prominent resident of the town where the (A) Yes, because she is a potential adverse
attorney maintains his offices. This client has held party.
a number of local political offices and is presently
engaged in a hotly contested primary election (B) Yes, because she is too poor to afford a
contest for the seat in the United States Congress lawyer.
representing the town and surrounding environs.
The client tells his attorney that he is being black- (C) No, because he advised her to retain
mailed by a young woman who is threatening him counsel.
with a paternity suit. The client admits to a brief
dalliance with the woman, but denies being the (D) No, because this is not a criminal matter.
father of her child. The client tells his attorney
that he is willing to settle with the woman for Question 25
$10,000 to prevent the bad publicity that would
result from the filing of a paternity suit against An attorney placed an advertisement in a
him and which would probably ruin his chances newspaper of general circulation published daily
for election to Congress. in the community in which she practiced. The
ad was to run every Tuesday and Thursday for
The attorney approaches the woman and tells a six-month period. The ad listed the attorney’s
her that he is willing to negotiate a settlement office address and office telephone number
with her on his client’s behalf. He strongly urges and properly identified her as a lawyer. The
the woman to retain counsel, as there will be ad also included the statement “after 5 p.m.,
legal documents to be signed should the negotia- call 555-4585,” which was the attorney’s home
tions succeed, and she should be fully informed telephone number. The ad further included the
of her rights. The woman tells the attorney that attorney’s fax number, which was identified as
she is presently unemployed and lacks the funds such.
to employ a lawyer. She further tells him that she
thinks she can adequately represent her interests Was the attorney’s ad proper?
herself.
(A) Yes, because all restrictions on lawyer ad-
The woman meets with the attorney in a vertising are unconstitutional.
private area of his law offices. During the course
(B) Yes, because the information supplied will
of their discussions, the attorney tells the woman
make it easier to contact her and make her
that although blood tests will establish that the
services more accessible to more people.
client is not the child’s father, they are willing to
offer $10,000 in settlement to avoid unfavorable (C) No, because it lists her home telephone
publicity. number.
The next day, the woman calls the attorney (D) No, because it is inappropriate to include a
and tells him that she will agree to the settle- fax number in an ad.
ment. The attorney tells her to be in his office at
3 p.m. to sign the settlement papers and receive
a $10,000 settlement check. The attorney shows
the woman the settlement papers and explains
them to her. The woman signs the papers and
receives a $10,000 check from the attorney.

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384. PRACTICE EXAM 4

Question 26 Question 27

A recent law school graduate who has just Shortly after the county grand jury handed
been admitted to her state’s bar returns to her down an indictment for armed robbery against
hometown, a town of 20,000 in population in a fugitive, the district attorney met with the
the center of the state. An attorney who has working press outside the door to the grand jury
practiced out of a one-person office in the novice room. He tells the reporters that he is limited as
attorney’s hometown for many years and is the to what he can say about pending cases and will
only attorney in that town who regularly handles make only three statements. Any other questions
bankruptcy cases asks the novice attorney to will be answered with “no comment.”
associate with him. He produces an employment
contract that he asks her to sign. The employ- Which of the following statements would not
ment contract provides that the novice agrees be proper to make to the press?
to a salary of $40,000 plus medical benefits,
and also agrees, for a period of one year after (A) “The fugitive has been indicted by the
leaving the attorney’s employ, not to accept any grand jury for armed robbery, but like all
bankruptcy cases, not to accept business from other American citizens he should be con-
clients who had been represented by the attor- sidered innocent until proven guilty.”
ney’s law firm during the period that the novice
was employed there, and, in fact, not to practice (B) “He was indicted after grand jury testimony
law within a 50-mile radius of the town in which by two credible witnesses.”
the attorney is located. The novice attorney
agrees and signs the employment contract. (C) “The public should be warned that this man
is a fugitive and is considered to be armed
Which provision within the employment and dangerous.”
contract is proper?
(D) “No comment.”
(A) The prohibition against practicing law
within a 50-mile radius of the town in
which her former employer is located.

(B) The prohibition against accepting any cases

dealing with bankruptcy.

(C) The prohibition against accepting business

from clients who had been represented by
the attorney’s law firm during the period of
the novice attorney’s employment.

(D) The provision regarding salary and benefits.

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 PRACTICE EXAM 4 385.

Question 28 Is the law partner subject to discipline?

A partner in a law firm has represented (A) Yes, because his firm has a conflict of inter-
a local manufacturing company for many est.
years. The company gives the bulk of its
legal business to the partner. The partner also (B) Yes, because he did not obtain informed
does some collection work for the company. consent, confirmed in writing, from the
A number of the company’s customers have manufacturing company.
not paid their bills, and the partner is in the
process of obtaining judgments against them. (C) No, because the default judgments are
These particular judgments are all default routine and uncontested.
judgments, as none of the customers have filed
answers to the complaints within the time limit (D) No, because the associate no longer repre-
stated. Thus, the judgments will be handled in sents the telecommunications company.
a routine manner by the court with virtually
automatic rulings in favor of the company. In the
meantime, an associate in the partner’s law firm
who has never done any work for the company
has been retained by a telecommunications
company to draw up a number of contracts.

The partner files the papers for default

judgments against the manufacturing compa-
ny’s delinquent customers. Among these
customers is an unincorporated division of
the telecommunications company, a fact that
is not discovered by the partner until after
he has filed the papers. The partner tells the
associate who, in turn, tells the appropriate
officer of the telecommunications company that
he will have to withdraw from representing his
company because of a conflict of interest. After
explaining the problem fully to the telecommu-
nications company’s officer, they part on very
cordial terms with the associate being given
permission to withdraw. The partner proceeds
with his cases against the manufacturing
company’s delinquent customers.

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386. PRACTICE EXAM 4

Question 29 (B) Yes, because he believed that the bill was

in the public interest and he disclosed to the
An attorney has done legal work for a waste committee that one of his corporate clients
management company for many years and is on would benefit if the bill passed.
very friendly terms with its officers and directors.
The attorney is also chair of a state bar associa- (C) No, because he had a conflict of interest.
tion committee. A bill has been introduced into
(D) No, because his vote potentially could
the state legislature that would allow corporate
be decisive in determining the state bar
boards of directors to vote by telephone, thus
committee’s recommendation.
eliminating the necessity for the directors to be
physically present at meetings. The state bar Question 30
association committee that the attorney chairs
has been studying the bill and is about to have a A widow is greatly distraught because her
meeting where a vote will be taken on whether late husband provided only a $1,000 bequest for
to recommend to the legislature that the bill be her in his will. Under the terms of his will, the
passed. The committee’s recommendation will rest of his substantial estate (over $1 million)
probably carry a great deal of weight with the will go to a fraternal lodge of which the husband
legislators, and in fact may well be determina- was a lifelong member. The widow consults an
tive of whether the bill is enacted into law. The attorney who studies the will and determines that
attorney believes the bill is in the public’s interest. there has been an important flaw in its execu-
tion. The attorney successfully challenges the
The attorney meets the president and the will’s validity, and the probate court rules that
treasurer of the waste management company the husband’s estate will descend by the laws
after work for cocktails at a private club to which of intestate succession, which means, in this
the attorney and the officers of the company jurisdiction, that the widow will take all of the
belong. Although the occasion is primarily husband’s estate. The attorney charges the widow
social, the company’s president tells the attorney a reasonable fee, which the widow pays promptly.
that he is very interested in the work of the state The widow, however, is so pleased with the attor-
bar association committee. The president tells ney’s work that she wants to give the attorney a
the attorney that he and the other officers of his gift as a token of her gratitude. The widow goes
company strongly favor the bill pending in the to an antique shop and purchases a $500 vase.
legislature, as telephone voting would be much She smilingly presents the vase to the attorney.
more efficient for the company and would save
all the time and trouble of gathering the direc- Will the attorney be subject to discipline if she
tors together for meetings. He urges the attorney accepts the vase?
to argue in favor of the bill in the committee (A) No, because there is nothing wrong with a
meeting and to vote in favor of recommending lawyer accepting a gift from a client.
that the bill pass. At the committee meeting, the
attorney disclosed that one of his clients would (B) Yes, because the widow did not first discuss
benefit from the bill’s passage, but then went the gift with independent counsel.
ahead and voted for the bill.
(C) Yes, because the attorney has been
Was it proper for the attorney to support the adequately compensated for her work on
corporate voting bill in the state bar association the widow’s case and acceptance of the gift
committee? constitutes an excessive fee.

(A) Yes, because he was acting to further the (D) Yes, because the attorney would be
interests of a client. overreaching if she accepted the gift.

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 PRACTICE EXAM 4 387.

Question 31 Question 32

A journalist regularly wrote a column that A man walked into the law offices of an
appeared twice each week in a newspaper of attorney who, because she was not busy at the
general circulation in the town in which he lives. time, agreed to talk to the man right away. The
The journalist approached an attorney with man told the attorney that he was concerned
offices in that town and told the attorney that her that he might be indicted soon. He explained
name would appear frequently in the column the details of his predicament at length to the
in a favorable light if the attorney would supply attorney, but after he finished, the attorney
the journalist with “behind the scenes” items explained that she only handled civil matters
about local judges, lawyers, and important or and urged the man to consult with a friend who
otherwise interesting cases. The attorney readily was a criminal lawyer. The man went on to
agreed to the journalist’s proposal, and she retain the friend. A few days after her interview
began supplying information to the journalist. with the man, the attorney read a news item
The attorney’s name did appear often in the announcing the man’s indictment. It quoted the
journalist’s column, and always in a very favor- district attorney at some length. After reading
able light. the article, the attorney became convinced that
something the man had told her during their
Is the attorney subject to discipline? interview would probably exonerate him or, at
the very least, lead to a reduction in the charges
(A) Yes, because she has given consideration against him if the district attorney became aware
for favorable publicity. of the information in her possession.
(B) Yes, because it is unethical to spy on fellow May the attorney reveal the information to the
lawyers and judges. district attorney?
(C) No, because she received nothing of (A) Yes, because the man did not retain the at-
pecuniary value from the journalist. torney as his counsel.
(D) No, because her activities are protected by (B) Yes, because the information will help the
the First Amendment to the United States man.
Constitution.
(C) No, because the attorney learned the infor-
mation during the course of an attorney-
client relationship.

(D) No, unless the man consents to the disclo-

sure.

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388. PRACTICE EXAM 4

Question 33 (A) Yes, because of his statements urging the

accountant not to worry.
Several months ago, the president of a large
company noticed that there were some discrep- (B) Yes, because all communications with
ancies in the company’s books, and that some parties who are not represented by counsel
funds seemed to be missing. He began checking are prohibited.
the work of the company’s accountant, after
hours and unbeknownst to the accountant, and (C) No, because the attorney was trying in good
became convinced that the accountant has faith to further the interests of his client.
been embezzling funds from the company. The
president, on behalf of the company, retains (D) No, because the attorney has not yet filed
the services of an attorney to determine if the suit on behalf of his client.
company has a case against the accountant. The
attorney agrees with the company president
that there is a strong indication that the accoun-
tant has been embezzling funds. In fact, the
attorney has already determined that tomorrow
he will file a civil suit against the accountant
to recover the company’s money and go to
the prosecutor’s office to sign an embezzle-
ment complaint against the accountant. The
attorney, however, tells the company president
that the more evidence they can obtain against
the accountant, the stronger their case will
be. The company president suggests that the
attorney interview the accountant before he
presses charges, as the accountant may make
some remarks that would implicate him in the
embezzlement. The attorney readily agrees to
this. The company president tells the accoun-
tant that the attorney is investigating some
problems in account recordkeeping to make
sure that the company’s procedures comply
with all applicable laws and regulations. He
asks the accountant to explain how his opera-
tion works. The attorney and the accountant
go to a private office, where the attorney inter-
rogates the accountant for approximately two
hours. During the course of the interrogation,
the accountant becomes suspicious of the line
of questioning and asks if he is in any trouble.
The attorney tells him not to worry, as the
amount of money involved is so small that the
action may not be worth pursuing.

Is the attorney subject to discipline for

questioning the accountant?

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 PRACTICE EXAM 4 389.

Question 34 Question 35

A buyer of materials employed by a midsize An attorney represents a defendant who is

company that did some business with the state being prosecuted in a jury trial for an armed
and local government was questioned by an robbery and attempted murder that occurred
attorney hired by the company president to on June 15. The accused has pleaded not
look into suspected wrongdoing within the guilty to the charges, but the attorney knows
purchasing department. Initially, the buyer was that the accused is the perpetrator and that
told by the company president that the attorney the crime occurred at approximately 10 p.m.
was studying the buying process to make sure The victim testifies that she is certain that the
that the company’s procedures comply with crime occurred at midnight. The accused has
all applicable laws and regulations. During the an airtight alibi for midnight. At 11:40 p.m. he
questioning, the buyer broke down and admitted was arrested on a drunk driving charge, and he
to taking bribes to fix bids. He also described was in police custody until 6 a.m. on June 16.
company-wide practices that could subject On cross-examination, the attorney does nothing
the company to civil and criminal liability. In to challenge the victim’s recollection of the
an effort to avoid publicity and liability, the time of the attack. Also, as the trial unfolds, the
company fired the buyer but agreed not to turn attorney does not introduce any evidence at her
the matter over to the police. Additionally, the disposal that would help establish the time of the
company hired a new buyer whose reputation attack as 10 p.m. The attorney calls as a witness
for integrity was beyond reproach to take over a police officer who testifies that the accused
the buying of materials for the company. Some was in fact in custody at midnight on the night
time later, the company was sued by a customer in question. The accused does not testify and is
for wrongdoing that arose out of one of the acquitted.
company-wide practices reported by the former
buyer to the attorney. During the trial, the plain- Are the attorney’s actions proper?
tiff calls the company’s attorney to the stand to
testify about his conversation with the former (A) Yes, because her client is a criminal de-
buyer. The attorney objects, claiming attorney- fendant and constitutional protections take
client privilege. precedence over ethical rules.

The objection should be: (B) Yes, because she did not present false
evidence.
(A) Sustained, because the buyer talked to the
company’s attorney at the company presi- (C) No, because she knew that the victim’s
dent’s request and his statements concern testimony was wrong and would mislead
the buying of materials only. the jury as to a crucial component of the
case.
(B) Sustained, because the company can claim
the privilege on behalf of the buyer, its (D) No, unless she notified the judge of the true
employee. facts outside the presence of the jury, and
he instructed her to proceed.
(C) Overruled, because the buyer was not
seeking legal services from the company’s
attorney.

(D) Overruled, because the buyer is no longer

an employee of the company.

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390. PRACTICE EXAM 4

Question 36 (A) Yes, because he could have prevented fu-

ture fraud by the trustee.
The trustee of a trust for the care and support
of the trustee’s deceased sister’s minor children (B) Yes, because he owes a duty of candor to
wishes to sell some of the trust property to pay the tribunal.
for the schooling of one of the children who
has special needs. The trustee hires an attorney (C) No, because the information was confiden-
to file the appropriate papers to obtain court tial.
approval for the sale. In the course of the conver-
sations between the attorney and the trustee, the (D) No, because it is the court’s duty to super-
trustee discloses that he has committed several vise a trustee.
breaches of trust in the past, including borrowing
trust funds to pay for his home improvements
and gambling trust funds at the race track. Most
of the money has been repaid with reason-
able interest, and the trustee tells the attorney
that he has learned a few things about being a
trustee, and will be much more careful about
his handling of trust funds in the future. The
attorney urges the trustee to tell the court of his
wrongdoing and resign as trustee, but the trustee
refuses. The attorney proceeds to represent the
trustee in the proceeding seeking court approval
for the sale of trust assets. The attorney fills out
all of the court papers truthfully and does not
in any way state anything false or misleading
to the court. The court does not inquire about
the management of the trust or any dissipation
of trust assets, and neither the attorney nor the
trustee volunteers the information.

Is the attorney subject to discipline?

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 PRACTICE EXAM 4 391.

Question 37 (A) Yes, because the lawyer is a necessary

witness for the corporation; he is the only
A lawyer represented a corporation in some nonadversary witness who can corroborate
business negotiations with a construction the corporation president’s testimony about
company. Only four persons were present during the representation that the construction
the negotiations: (1) the corporation’s president; company’s CEO made at the meeting.
(2) the corporation’s business lawyer; (3) the
construction company’s chief executive officer (B) Yes, because the lawyer’s testimony does
(“CEO”); and (4) the construction company’s not relate to a minor, uncontested matter or
attorney. During the negotiations, the corpora- to the nature and value of the legal services
tion’s president and its business lawyer clearly rendered in the case; nor is this a situation
heard the construction company’s CEO make in which disqualification of the law partner
a certain representation that was vital to the would work a substantial hardship on the
success of the negotiation. Based on this repre- corporation.
sentation, the parties reached an oral, handshake
agreement to pursue a certain business oppor- (C) No, because there is no conflict of interest
tunity as a joint venture. Six months later, after presented by the lawyer’s role as a witness
the corporation had invested $11 million in the for the corporation, and because a lawyer is
joint venture, the corporation discovered that ordinarily allowed to serve as trial counsel
the representation made by the construction in a case where his law partner will testify
company’s CEO was false and that he undoubt- on behalf of his client.
edly knew it was false when he made it. Due
to the false representation, the joint venture (D) No, because the lawyer’s testimony will
failed, and the corporation lost its $11 million. be merely corroborative; he will simply
The corporation sued the construction company confirm the corporation president’s testi-
and its CEO in federal court for intentional mony that the construction company’s CEO
misrepresentation. The corporation selected one made the representation at the meeting.
of its lawyer’s law partners as its trial counsel.
The defendants denied making the representa-
tion. The corporation’s final pretrial statement
listed the corporation’s president and the lawyer
as witnesses for the corporation, stating that
they would testify that they heard the construc-
tion company’s CEO make the representa-
tion. Counsel for the defendants then moved
to disqualify the lawyer’s law partner as trial
counsel due to the lawyer’s acting as a witness
for the corporation.

Is the law partner subject to disqualification?

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392. PRACTICE EXAM 4

Question 38 Question 39

An attorney happened upon an accident scene Two attorneys represent two corporations
and stopped his car to see if there was anything who oppose each other in a civil suit. One of
he could do to help. Several police officers were the attorneys has filed a petition with the court,
on the scene, and the attorney told one of them seeking to have the other attorney removed as
that he was a lawyer and asked if he could do opposing counsel. She claims he has a conflict
anything to assist the accident victims. The of interest because he once did certain work
police officer told the attorney that one of the for her present client. He calls her and tells her
victims was a physician who was convinced that he thinks the conflict of interest matter can
that he was going to die from his injuries and be resolved if she listens to his explanation.
wanted a will. The attorney went over to talk The attorneys meet and begin to negotiate the
to the physician, who lay on a stretcher. The conflict of interest issue, and during the same
physician begged the attorney to write a will for meeting discuss a settlement of the lawsuit.
him on the spot. The attorney at first demurred, They agree to meet again and continue their
explaining to the physician that he had only discussions. Immediately after the first meeting,
been sworn into the state bar two weeks before, the attorney who raised the issue of conflict of
he had never written a will for a client, and he interest goes to her office and dictates a letter to
had received a “D” in his only law school class the judge who is trying the case, telling the judge
covering the subject. After listening to five that she and the opposing counsel are attempting
minutes more of the physician’s pleading, the to resolve their differences on the conflict of
attorney agreed to write the will for the physi- interest matter and are also negotiating a settle-
cian. He wrote the will on the blank backside of ment of the underlying lawsuit. She mails the
an accident report. The physician signed the will letter to the judge that afternoon.
and two police officers witnessed it. The physi-
cian died two hours later. Is the attorney subject to discipline?

Was the attorney’s conduct proper? (A) No, because it is courteous to inform the
judge that a settlement is being negotiated.
(A) Yes, because he acted in a humane manner
appropriate to an emergency situation. (B) No, if there were no false or prejudicial
statements in the letter.
(B) Yes, because he was a licensed attorney
when he wrote the will. (C) Yes, because she did not send opposing
counsel a copy of the letter.
(C) No, because he lacked sufficient knowledge
of the law of wills. (D) Yes, because she failed to inform the
opposing counsel before she sent the letter.
(D) No, because the physician should have
agreed to limit the attorney’s malpractice
liability due to the emergency situation.

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 PRACTICE EXAM 4 393.

Question 40 (A) Yes, because the attorney knew that the

paper application forms were relevant and
An attorney defended a corporation in a state would probably be requested by the plain-
civil case brought by three named plaintiffs tiffs.
suing on behalf of a class of similarly situated
people. The plaintiffs allege that the corporation (B) Yes, because a litigant’s destruction of any
owns nearly 100 apartment houses throughout documents whatsoever while a civil case is
the state and that it refuses to rent apartments pending can be punished as a fraud on the
to persons of color, in violation of the state’s court.
discrimination law. The civil discovery rules
of the state do not require voluntary document (C) No, because the class action is a civil
production—i.e., a litigant does not have to case, and there is no criminal liability for
produce a document until the adversary asks discovery misconduct in a civil case.
for it in a timely, specific document request.
Immediately after the complaint was filed, and (D) No, because the plaintiffs had not yet
before any discovery had started, the attorney requested the production of documents.
made a quick but careful investigation of the
types of records that the corporation keeps
concerning tenants and prospective tenants. She
found that, starting more than 20 years ago, the
manager of each of the corporation’s apartment
houses filled out a paper “application form”
for each person who wanted to rent an apart-
ment. The application form called for informa-
tion about the person’s age, sex, marital status,
race, religion, current and past employment, and
approximate yearly income.

About eight years ago, the corporation started

entering information from the application forms
into a computer system, but the computer version
omits information about the person’s race and
religion. The computer system makes it unnec-
essary to keep and store the paper application
forms. Nonetheless, through inertia and corpo-
rate ineptitude, the corporation has carefully
preserved all of the paper application forms
for the past eight years. The attorney advised
her client to get rid of the old paper applica-
tion forms. The corporation did as its attorney
suggested.

Is the attorney subject to criminal liability for

suggesting the destruction of the paper applica-
tion forms?

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394. PRACTICE EXAM 4

Question 41 Question 42

A partner in a law firm has just been elected a The owner of a parcel of real estate on the
judge of the circuit court. She has been assigned east side of town wants to trade his land for
to the probate division. During her last week a parcel of land owned by a woman on the
with the law firm, she filed a number of very west side of town. The owner of the west side
routine, uncontested probate motions. At the property retains an attorney and tells him that
time, she had no idea that she would be assigned she wishes to complete the deal as cheaply as
to the probate division. These routine probate possible. She asks the attorney to draw up papers
motions have been assigned to her courtroom by for the transfer of property and asks him to order
a lottery system of random assignment that the a title search and survey of the other party’s
circuit court regularly employs to assign cases. property. The attorney recommended to her that
a similar search and survey be conducted for her
Is it proper for the judge to rule on these own property as well, but she replied that she
motions? wished to save money and did not need a search
and survey for her property. The two parties
(A) Yes, because they are routine and uncon- exchange warranty deeds, and each takes posses-
tested. sion of the other’s property as agreed.
(B) Yes, because reassignment would cause A year later, the now-owner of the west side
delay. property—the property that did not have a title
search and survey after the then-owner rejected
(C) No, because she has a conflict of interest. the idea—contracts to sell the property. The
prospective purchaser orders a title search and
(D) No, because judges may never rule on survey and discovers that there are defects
issues when their former law firm is that will substantially reduce the value of the
involved. property. The owner of this property eventually
sells it at a price much lower than he could have
commanded had the defects not been present. He
sues the former owner for damages and receives
an award of $10,000. The former owner, on the
other hand, feels that her attorney is responsible
for this, and she sues him to recover the $10,000.
Is the attorney subject to liability for malprac-
tice?
(A) Yes, because a competent attorney would
have insisted upon a title search and survey
for the property.
(B) Yes, because his client was a foreseeable
plaintiff in a malpractice case.
(C) No, because he was following his client’s
instructions.
(D) No, because the buyer did not insist on the
seller’s presenting a title search and survey.

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 PRACTICE EXAM 4 395.

Question 43 Question 44

An attorney represents a plaintiff in a sexual An attorney who is engaged in private practice

harassment case against her employer. The in the city in which he lives has many friends
employer is represented by its regular corpo- who belong to a fraternal and charitable society
rate counsel. The plaintiff, who works on an with chapters throughout the state. The attorney
assembly line, alleges that she was repeatedly is not a member of the society, but knows a
harassed by the foreman on her work shift. number of its officers socially and has performed
Furthermore, she alleges that the plant manager legal work for them on matters unrelated to the
was aware of this misconduct and did nothing to society. The officers of the society are sometimes
stop it. The plaintiff tells her attorney that two of consulted by members who have legal problems.
her co-workers on the assembly line witnessed The officers, being very pleased with the quality
harassment incidents, but neither reported the of the attorney’s work, often refer such members
incidents to supervisory personnel. One of the to him. The attorney has never asked the officers
witnesses quit working for the employer at about for such referrals, but is, of course, very pleased
the time the plaintiff filed her lawsuit. because he has earned substantial fees from
these referrals.
The attorney wants to do some fact investi-
gation before he starts discovery in the case, The society is presently organized as an
and wishes to interview the plant manager, the unincorporated association, but the leaders are
foreman, and the two co-worker witnesses. interested in incorporating the society under the
state’s Nonprofit Corporation Act. One of the
Which of the following best states proper officers asks the attorney what his fee would be
conduct for the attorney in interviewing these for incorporating the society. The attorney tells
individuals? the officer that he is very grateful for the client
referrals from the society and, as a token of his
(A) He may freely interview the plant manager appreciation, he will not charge a fee for the
and both witnesses because they are simply incorporation work.
third-party witnesses, but he must obtain
defense counsel’s consent to interview the Is the attorney subject to discipline?
foreman.
(A) Yes, because a lawyer must not give some-
(B) He may freely interview both witnesses, but thing of value in return for client referrals.
he must obtain defense counsel’s consent
to interview the foreman and the plant (B) Yes, because only clients unable to pay
manager. should be given free legal services.

(C) He may freely interview the witness who (C) No, because a lawyer always has the option
no longer works for the defendant, but he of waiving a fee.
must obtain defense counsel’s consent to
interview the foreman, the plant manager, (D) No, because the attorney did not solicit the
and the witness who still works for the referrals.
defendant.

(D) It would be improper for him to inter-

view any of these people without defense
counsel’s consent.

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396. PRACTICE EXAM 4

Question 45 Question 46

An attorney placed an advertisement that ran An attorney who was popular in the legal
daily in the classified section of a newspaper of community decided to run against an incumbent
general circulation that is widely read in the area judge in the forthcoming election. The judge was
where the attorney practiced. Besides stating widely regarded by members of the local bar as a
the attorney’s office address and telephone “party hack,” who had no business being on the
number, and identifying the attorney as a bench. The opposition party was very pleased
licensed attorney, the advertisement included the to be able to slate the attorney because she had
following statement: a high reputation for intelligence, honesty, and
overall competence as a lawyer. The attorney
DIVORCES - LOW RATES!!! realizes that she will have to fight an uphill
Just $300, plus costs, for uncontested divorces battle to unseat the judge because her political
party is a minority party in the county and most
According to bar association surveys, the voters know very little about judges and candi-
“low average” fee in the area for an uncontested dates for the judiciary and therefore, voters are
divorce is $325, plus costs. likely to vote a straight ticket for judges of their
own political party. The attorney wants the
Is the attorney’s advertising proper? public to know that the judge has been a poor
judge, but she also wishes to comply with all
(A) Yes, because the legal profession imposes ethical rules governing judicial campaigns. The
no substantive limitations on comparative attorney’s best friend and chief advisor, also a
advertising. lawyer, suggests that the attorney should make
some prepared statements during her campaign.
(B) Yes, because the attorney’s rates really are
low. Assuming that all the facts cited in the state-
ments are accurate, which statement would not
(C) No, because the attorney fails to state his be proper for the attorney to make during her
range of fees for contested divorces. judicial campaign?
(D) No, because the advertisement is in bad (A) That her opponent has had the highest per-
taste and constitutes a self-serving attempt centage of cases reversed on appeal of any
to solicit business at the expense of fellow judge in the state over the past two years.
lawyers.
(B) That 18 months ago, her opponent was
publicly disciplined by the state’s judicial
conduct board.
(C) That a recent poll taken by the local bar
association indicated that a majority of bar
association members feel that her opponent
lacks the proper judicial temperament.
(D) That a recent newspaper article comparing
judges of the county stated that her
opponent had handed out an average
sentence of only two years to persons
convicted of serious felonies, and that she
would not be soft on crime.

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 PRACTICE EXAM 4 397.

Question 47 Question 48

A judge is known to grant continuances A state legislature conducted open hearings

whenever requested by a lawyer, regardless of concerning a bill pending before it that would
the substantiality of the lawyer’s grounds. He has make it much more difficult for corporations
turned down a continuance request on occasion, chartered in the state to be taken over by corpo-
but such occasions are so few and far between rate raiders. By making unfriendly takeovers
that local lawyers are shocked when they hear more difficult, the proponents of the bill hope to
of them. When queried by a judicial colleague save jobs in the state and to encourage corpora-
about his policy on continuances, the judge told tions not now chartered in the state to obtain
her that granting continuances gives the parties state charters, which would bring added revenue
that much more time to come to their senses to the state. An attorney who is a senior partner
and settle, which saves both the parties and the in a prestigious law firm asked to testify at the
taxpayers the expense of a full-blown trial. hearings. The attorney had been retained by a
large corporation and was asked by its president
Is the judge’s policy of granting continuances to testify against the pending legislation at the
to promote settlements proper? legislative hearings. The corporation’s president
also told the attorney that under no circum-
(A) Yes, because the granting of continuances stances was he to tell the legislature who hired
is clearly within the bounds of judicial him or mention the name of the corporation in
discretion. his testimony. The attorney complied with the
corporation’s strictures and never mentioned
(B) Yes, because the judge sincerely believes that he was being retained to give testimony
that his lenient continuance policy promotes against the pending legislation. The attorney’s
settlements and that settlements promote testimony before the legislative committee was
a more rational and amicable system of effective and hard-hitting. After his testimony,
justice. the attorney was asked a few questions by
committee members, but he was never asked if
(C) No, because judges have no duty to promote he was appearing on some other party’s behalf.
settlements.
Was the attorney’s conduct at the hearing
(D) No, because judges have a duty to expedite proper?
litigation.
(A) Yes, because his client specifically instruct-
ed him not to reveal the client’s name.

(B) Yes, because no one asked him if he was

appearing at the hearings on behalf of a
client.

(C) No, because he did not disclose that he was

appearing at the hearings in a representa-
tive capacity.

(D) No, because a lawyer may not practice

deception upon a legislative body.

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398. PRACTICE EXAM 4

Question 49 (A) Remain silent.

A wealthy landowner who is elderly and (B) Suggest that the son might want to talk
very infirm, although mentally very sharp, to his father’s employee about his father’s
contacts his niece, a registered nurse who lives intentions.
in another state. He urges his niece to live with
him at his ranch and take care of him. He says (C) Tell the son about his father’s statement
that he understands she would be making a about leaving one-third of the ranch to the
major sacrifice but if she will stay and care for niece, but offer no further advice.
him until his death, he will leave her one-third
of his ranch in his will. The niece agrees to care (D) Tell the son about his father’s statement and
for her uncle. counsel the son to deed one-third of the
ranch to the niece.
The niece arrives and is met at the train
station by the landowner and his employee. Question 50
On the way home, they stop at the office of his
attorney to pick up some tax documents. The An attorney who has been practicing law for
landowner tells his attorney, in the presence two years is preparing a radio advertisement. He
of both his niece and his employee, about plans to state that: (1) he comes from a long line
his intention to have a new will drafted that of lawyers, and that his father and grandfather
would leave one-third of his ranch to his niece. are both judges; (2) he specializes in personal
However, the landowner falls into a coma injury and divorce cases; (3) he has never lost a
before following through with his plan. The jury trial and 99% of his clients end up receiving
doctors have indicated that the landowner is some form of payment; and (4) he “succeeds
near death and will never regain consciousness. where others fail.”
Under the terms of his old will, everything he
has is left to his son, who is his only child and Which of those statements is proper?
a highly successful businessman in another
state. (A) That he comes from a long line of lawyers,
and that his father and grandfather are both
The son arrives to say goodbye to his father judges.
and to help get the affairs of his father in order.
When he consults with his father’s attorney, he (B) That he specializes in personal injury and
mentions to the attorney that he thinks that it divorce cases.
was very good of the niece to travel so far to
(C) That he has never lost a jury trial, and 99%
care for his father, and that he is sure that his
of his clients end up receiving some form of
father would have wanted to reward her in some
payment.
way, even though there is no mention of her in
the will. The son says that he would like to do (D) That he “succeeds where others fail.”
the “right thing,” but has no idea what his father
might have had in mind.

Which of the following states the most that

the attorney may do in attempting to carry out
his client’s wishes?

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 PRACTICE EXAM 4 399.

Question 51 (A) No, because the attorney does not maintain

a law office in the western state, and be-
One state is right across the river from cause his response to the young judge was
another state, and there is a constant flow of the literal truth.
people and commerce between them. Many
people work in one state and live in the other, (B) No, because the western state has no juris-
and many people cross the river to shop, go diction to discipline a lawyer who is not
to school, seek entertainment, attend religious actively engaged in law practice in the state.
services, and the like. An attorney who lives
in the western state maintains his law office (C) Yes, because he misled the judge by his
in the eastern state. He limits his practice to half-true response to the judge’s question.
drunk driving defense. In 1967, the attorney
became a member of the bar in both states, (D) Yes, both because of his unauthorized law
but a few years ago, he stopped paying his bar practice in the western state, and because
dues in the western state and stopped fulfilling he misled the judge by his half-true
that state’s continuing legal education (“CLE”) response to the judge’s question.
requirements. The western state placed him on
its inactive list, which means that he cannot
practice law there until he pays the balance
in his dues account and completes the CLE
requirements. Nevertheless, the attorney adver-
tises his law office in the western state’s Yellow
Pages phone book and in various other media
in the western state. He regularly represents
drunk driving clients who live in the western
state and who are charged with drunk driving
in that state’s courts. When a client who lives in
the western state finds it inconvenient to travel
to the attorney’s law office in the eastern state,
the attorney meets the client at the attorney’s
home in the western state. Recently, the attorney
appeared on behalf of a drunk driving client
before a young, newly appointed judge in the
western state who asked him if he was admitted
to practice in that state. The attorney responded
cheerfully: “Your Honor, I was admitted to
practice here back in 1967, long before Your
Honor was born.” The judge allowed him to
proceed.

Is the attorney subject to discipline by the bar

of the western state?

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400. PRACTICE EXAM 4

Question 52 (A) The judges did not act properly in speaking

out in public in favor of the voter initiative.
A state has a so-called three strikes law that is
designed to give life sentences to career felons. (B) The judges are subject to discipline for
When a person is convicted of her third felony, speaking out in public in favor of the voter
the three strikes law forces the sentencing judge initiative.
to give the person a life sentence, even if the
third felony does not involve violence, and even (C) The attorney acted properly in contributing
if the maximum punishment for the third felony her time to the campaign in favor of the
by itself would be as little as two years in state voter initiative.
prison. Many judges in the state believe that
the three strikes law is unconscionably harsh (D) The attorney is subject to discipline for
and should be repealed. The state’s legislature, contributing her time to the campaign for
however, has refused to act. A citizen group the purpose of getting more court appoint-
was successful in qualifying a voter initiative to ments.
abolish the three strikes law. Many judges have
spoken out publicly in favor of the voter initia-
tive. An attorney who has both an accounting
degree and a law degree earns most of her
living by serving as a court-appointed master in
complex cases where her dual skills are useful.
The bulk of her service is in a court that is
dominated by judges who favor the voter initia-
tive. For the sole purpose of getting more court
appointments from those judges, the attorney
has contributed 200 hours of her time to the
campaign in favor of the voter initiative.

Which of the following statements is true?

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 PRACTICE EXAM 4 401.

Question 53 part of the fee in the case, and only if the

farmer gives informed consent, confirmed
A law partner and her associate practice in writing.
at a law firm located in a rural community
in mid-America. Only three other law firms (D) The associate may defend the roofing
practice in that community. The partner volun- company, but only if the partner promises
teers her time every Saturday morning to sit in writing not to tell the associate anything
in a room at the local public library where that the farmer told her in confidence about
she provides quick answers to simple legal the matter.
questions posed by community members who
cannot afford to consult a lawyer in the ordinary Question 54
manner. The program is sponsored by the
County Bar Association, a nonprofit organiza- A recent law school graduate who passed
tion. The partner makes clear to each person the bar set up his own solo practice law office.
that she will answer the person’s question as best He hopes to develop a prosperous clientele of
she can, without doing legal research, and that business clients, but meanwhile, he drives a
she will not represent the person in any long- taxi four nights a week. Sometimes when a taxi
term sense. One Saturday morning, the partner passenger appears to be a prosperous business-
advised a farmer about how to represent himself, person, the novice attorney mentions that he
in propria persona, as plaintiff in a lawsuit is looking for clients in his new business law
against a local roofing company that put a defec- practice; at that point, he usually hands the
tive roof on his barn. A few weeks later, the passenger one of his professional cards and
farmer filed the suit, and the roofing company says: “Please call me if you ever need a lawyer.”
hired the associate to defend it against the When a taxi passenger is drunk, inexperienced,
farmer’s suit. That was the first time the roofing or not paying attention, the novice attorney
company consulted either the associate or the sometimes does not start the taxi meter running.
law firm where the associate and the partner At the end of the ride, he charges the passenger
work. When the associate agreed to defend as much as he thinks the passenger will pay
the roofing company, he did not realize that without starting a fight. Because the ride is not
the partner had previously advised the farmer recorded on the taxi meter, the novice attorney
on how to bring the suit; indeed, the partner pockets the entire fare without having to divide it
purposely never tells her associate anything with the taxi company.
about her Saturday morning volunteer work.
Is the novice attorney subject to discipline by
Which of the following is correct? the bar?

(A) The associate may defend the roofing com- (A) Yes, because he must follow all of the legal
pany, even though the partner had previ- ethics rules when he drives the taxi.
ously advised the farmer on the matter.
(B) Yes, because he sometimes cheats by
(B) The associate may defend the roofing failing to start the taxi meter.
company, but only if both the farmer and
the roofing company give informed consent, (C) No, because he does not give his business
confirmed in writing. card to persons known to need legal
services in a particular matter.
(C) The associate may defend the roofing
company, but only if the partner is screened (D) No, because he is not providing legal
off from the case and is apportioned no services to his taxi passengers.

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402. PRACTICE EXAM 4

Question 55 (A) The attorney is subject to discipline for

selling his practice to the highest bidder.
An attorney was in solo practice on the west
coast. His wife got a new job on the east coast (B) The purchaser is subject to discipline for
so he started looking for someone to buy his threatening to withdraw from representing
west coast practice. The attorney’s labor and clients who would not sign the new 35%
employment law practice consisted entirely of contingent fee agreement.
representing plaintiffs in ongoing litigation and
administrative proceedings to redress employ- (C) The purchaser’s identification of likely
ment discrimination, dangerous or hostile winners and likely losers was proper, as
conditions in the workplace, sexual harass- was her offer of a new 35% contingent fee
ment, race discrimination in the workplace, agreement to the likely losers.
and the like. All of the attorney’s clients had
signed contingent fee agreements in which they (D) The attorney’s decision not to investigate
promised to pay the litigation or administrative the backgrounds of the seven prospective
expenses, and the attorney promised to repre- buyers was proper, as was his decision to
sent them in return for 20% of their net pretax sell his law practice.
winnings. This arrangement is more favorable
to the clients than any other arrangement they
could get from other lawyers in the community
for similar work. The attorney quickly found
seven different interested buyers for his practice.
Because he wanted to sell promptly, the attorney
did not investigate the training, experience, or
disciplinary records of the seven. Rather, he
sold the practice to the one who offered the
highest price. If he had investigated, he would
have discovered that the purchaser had almost
no experience in labor and employment law,
and that the state bar had disciplined her twice
for client neglect and client abandonment. The
attorney gave the requisite notice of sale to his
clients, and the purchaser took over the office,
the case files, the books, the computers, the
books of account, and the debts, duties, and
assets of the attorney’s practice. In due course,
she worked her way through the case files,
separating them into two piles—the likely
winners and the likely losers. She then wrote
letters to the likely losers, offering them a new
contingent fee agreement that would give her
35% of their net pretax winnings. She explained
that if they did not wish to sign the new agree-
ment, she would seek permission from the
tribunal to withdraw as their counsel.

Which of the following is correct?

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 PRACTICE EXAM 4 403.

Question 56 (A) To tell the judge not to push her around.

In the federal courts and the courts of some (B) To respectfully ask the court to stay the
states, when a litigant claims that a document order to allow time to consult with the
is protected by the attorney-client privilege, the client and to seek an interlocutory appeal or
trial judge can order the litigant to produce the extraordinary writ if necessary.
document for in camera inspection (i.e., private,
confidential inspection by the judge) so that the (C) To give the judge the letter but say she is
judge can decide whether the document really doing so under protest and without waiving
is privileged. The courts in one state follow the attorney-client privilege.
the opposite rule: a trial judge must not force a (D) To tell the judge that he is out of line.
litigant to produce a privileged document for in
camera inspection; the trial judge must use the
surrounding circumstances and whatever other
evidence is available when deciding whether the
privilege claim is valid. In a federal case where
jurisdiction is based only on diversity of citizen-
ship, the federal judge must apply the privilege
law that would be applied by a state court in the
state where the federal court sits. A federal district
judge was presiding in a diversity case in the state.
The defendant’s attorney refused to produce a
particular letter from defendant’s outside patent
counsel to defendant’s president. The defendant’s
attorney asserted the attorney-client privilege on
behalf of her client. The judge glowered down
at the defendant’s attorney and ordered her to
produce the letter for in camera inspection so
that he could see whether the letter was about a
legal matter or some nonprivileged subject. The
defendant’s attorney would not allow the judge to
see the letter, referring him to the clear law of the
state in which the court sat. The judge growled
and ordered her to hand him the letter.
Which of the following is the proper response
for the defendant’s attorney to make?

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404. PRACTICE EXAM 4

Question 57 (D) The outside attorney does not have actual

knowledge of a material violation of the
A multibillion-dollar company that makes securities laws.
and sells a range of vaccines, serums, and
pharmaceuticals in the United States, Canada, Question 58
Mexico, and several nations of the European
Union (“EU”) issues stock that is publicly traded An attorney has a regular client who is elderly
in interstate commerce, placing the company and in failing health. The client has retained the
within the jurisdiction of the Securities and attorney to draft his will. The attorney asked the
Exchange Commission (“SEC”). The chief client for a list of his assets to help her prepare
in-house legal officer of the company hired an the will. In a subsequent meeting, the attorney
outside attorney to supervise the preparation indicated her admiration for the client’s classic
of the company’s Form 10-K annual report to car, which the client has maintained in mint
the SEC. When the outside attorney was eating condition. The client was pleased at the attor-
lunch by himself in the company cafeteria one ney’s interest in the car, and directed the attorney
day, a low-echelon company employee passed to bequeath the car to herself in the will.
him a note stating that she had heard from
someone in a position to know that the company May the attorney include this bequest in the
had sold 144 units of snake antitoxin in Germany client’s will?
without obtaining a proper EU sales clearance.
Selling without a proper sales clearance violates (A) No, because this is a substantial gift, given
EU law, for which the EU could theoretically in a context in which she potentially wield-
fine the company 1% of the sales price, which in ed undue influence.
this case would be $26. Assume that a contin-
gent liability of $26 is too low to require disclo- (B) No, because a lawyer may never draft a will
sure in the Form 10-K. When he asked around in which the lawyer is a beneficiary.
the company about the employee who had
passed him the note, the outside attorney learned (C) Yes, because the attorney did not induce the
that she is a malicious gossip who passes along client to make the gift.
all kinds of stories, some true, some false.
(D) Yes, because the client may leave his
Which of the following reasons would excuse property to whomever he chooses unless he
the outside attorney from reporting the employ- is mentally incompetent.
ee’s information to the company’s chief legal
officer pursuant to the SEC’s Sarbanes-Oxley
regulations?

(A) The outside attorney was hired merely to

supervise the preparation of the Form 10-
K, not to appear before the SEC on behalf
of the company.

(B) A reasonable lawyer would regard the

employee’s story as not credible.

(C) What the employee told the outside attorney

is privileged, and he therefore must not
reveal it to the company’s chief legal officer.

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 PRACTICE EXAM 4 405.

Question 59 (A) Continue reading the fourth attachment and

preserve a hard copy for possible further
Two attorneys represent opposing parties in a use on behalf of his client.
hard-fought civil case. Each attorney knows that
the opposing attorney is diligent, forthright, and (B) Delete the fourth attachment from his
careful. One morning, the plaintiff’s attorney computer’s memory and not tell anyone
received an e-mail from defense counsel’s secre- about the mistake.
tary, saying that defense counsel was ill and had
asked the secretary to send along the four attach- (C) Stop reading the fourth attachment and
ments appended to the e-mail message. The notify the judge about the mistake.
first three e-mail attachments were documents
that defense counsel had agreed to produce in (D) Stop reading the fourth attachment and
response to the plaintiff’s attorney’s discovery notify defense counsel about the mistake.
request. The fourth attachment was a letter to
defense counsel from the in-house counsel of
defense counsel’s client. The plaintiff’s attorney
could tell from reading the first few lines that the
letter was a confidential communication between
attorney and client, and that defense counsel
obviously did not intend for it to be sent to him.

Which of the following best states the proper

course of action for the plaintiff’s attorney to
take?

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406. PRACTICE EXAM 4

Question 60 ject to discipline if he represents the theater

company in the arbitration in the state in
A theater company owns the copyrights to which the arbitration is to take place.
a large repertoire of plays, and it licenses the
copyrights throughout the United States. The (B) It was proper for the copyright attorney
company uses a large private law firm in the who represented the theater company in the
state in which its headquarters is located to license negotiations to negotiate the license
do all of its legal work. The company licensed in the state in which the negotiations took
the movie rights from one of its copyrighted place, and the litigator who was hired
plays to a major motion picture studio located by the theater company to represent the
in another state. All of its law firm’s lawyers company at the arbitration may represent
are admitted to practice in the state in which the theater company at the arbitration in
the theater company has its headquarters, but the state in which the arbitration is to take
not a single one of them is admitted to practice place.
in the state in which the motion picture studio
is located. The license agreement between (C) The copyright attorney who represented
the theater company and the motion picture the theater in the license negotiations is
studio was drafted by the latter’s counsel, and subject to discipline for negotiating the
it specifies that any dispute about the license license in the state in which the negotia-
will be resolved by arbitration in the state in tions took place, but the litigator who was
which the motion picture studio is located. An hired by the theater company to represent it
attorney who is one of the copyright lawyers at the arbitration may represent the theater
of the theater company’s law firm represented company at the arbitration in the state in
the theater company in the license negotia- which the arbitration is to take place.
tions, which took place in the state in which
the motion picture studio is located. When the (D) It was proper for the copyright attorney
studio finished making the movie, a dispute who represented the theater company in the
arose about how much royalty it owed the license negotiations to negotiate the license
theater company under the license. Pursuant in the state in which the negotiations took
to the arbitration clause of the license, the place, but the litigator who was hired by the
parties arranged to arbitrate the dispute in the theater company to represent the company
state in which the studio is located. The theater at the arbitration will be subject to disci-
company asked one of its law firm’s best litiga- pline if he represents the theater company
tors to represent it at the arbitration. The arbitra- in the arbitration in the state in which the
tion act in the state in which the arbitration is arbitration is to take place.
taking place says nothing about pro hac vice
admission of out-of-state lawyers in arbitration
proceedings.

Which of the following is correct?

(A) The copyright attorney who represented the

theater company in the license negotiations
is subject to discipline for negotiating the
license in the state in which the negotia-
tions took place, and the litigator who was
hired by the theater company to represent
the company at the arbitration will be sub-

STOP
 PRACTICE EXAM 4 407.

ANSWER SHEET

1 A B C D 31 A B C D
2 A B C D 32 A B C D
3 A B C D 33 A B C D
4 A B C D 34 A B C D
5 A B C D 35 A B C D

6 A B C D 36 A B C D
7 A B C D 37 A B C D
8 A B C D 38 A B C D
9 A B C D 39 A B C D
10 A B C D 40 A B C D

11 A B C D 41 A B C D
12 A B C D 42 A B C D
13 A B C D 43 A B C D
14 A B C D 44 A B C D
15 A B C D 45 A B C D

16 A B C D 46 A B C D
17 A B C D 47 A B C D
18 A B C D 48 A B C D
19 A B C D 49 A B C D
20 A B C D 50 A B C D

21 A B C D 51 A B C D
22 A B C D 52 A B C D
23 A B C D 53 A B C D
24 A B C D 54 A B C D
25 A B C D 55 A B C D

26 A B C D 56 A B C D
27 A B C D 57 A B C D
28 A B C D 58 A B C D
29 A B C D 59 A B C D
30 A B C D 60 A B C D
 PRACTICE EXAM 4 409.

Answer to Question 1 on written versions of the interviews or

conducting legal research and drafting
(C) A lawyer at trial must not state her own memoranda. Therefore, (C) is the only
personal opinion about the credibility of correct answer.
witnesses. [ABA Model Rule 3.4(e)] (C)
reflects personal opinion on the credibility Answer to Question 4
of a witness. (A), (B), and (D), on the other
hand, contain comments that are accept- (C) If one lawyer within a firm has a conflict
able. Thus, (C) is correct. of interest and cannot take on a matter, no
other lawyer in the firm may take on the
Answer to Question 2 matter either. [ABA Model Rule 1.10(a)]
One situation that would create a concur-
(C) ABA Model Rule 1.12(a) provides that rent conflict would be if there is a signifi-
a lawyer must not represent anyone in cant risk that the representation of a client
connection with a matter in which the will be materially limited by the lawyer’s
lawyer participated personally and substan- own interest or his responsibilities to
tially as a judge, unless all parties to another client, a former client, or a third
the proceedings give informed consent, person. [ABA Model Rule 1.7(a)(2)] The
confirmed in writing. Thus, (C) is correct, mayor would be prohibited from repre-
and (A) and (B) are incorrect. (D) is incor- senting the development company in this
rect because a judge may subsequently matter because such representation would
engage in private practice, except she may be materially limited by his responsibilities,
not participate in cases where she was as mayor, to the city. Thus, his law partner
personally and substantially involved. is also prohibited from such representation.
Therefore, (A) and (B) are incorrect. (D)
Answer to Question 3 is also incorrect; it makes no difference
whether the mayor has a direct role in the
(C) Under ABA Model Rule 5.5(b), a lawyer representation or shares any fees.
must not aid a nonlawyer in the unauthor-
ized practice of law. Although a lawyer Answer to Question 5
may delegate certain tasks to laypersons,
such delegation is professionally accept- (A) In this case, the attorney has personally
able only if the lawyer: (1) supervises the profited from her former client’s confiden-
delegated work, and (2) remains profes- tial information; in essence, his information
sionally responsible for the work product. boosted the dollar value of the attorney’s
[Comment 2 to ABA Model Rule 5.5] time. However, the attorney’s use of the
Reaching a settlement on behalf of a client information did not harm her former client.
clearly constitutes the practice of law, so Furthermore, the attorney used the informa-
the attorney is subject to discipline on the tion in connection with her law practice.
facts of (C). The drafting of forms by a Therefore, she does not have to account to
law student is permissible if the lawyer her former client for the profits she earned
complies with the conditions stated above, from the information. [See Restatement
which the attorney here appears to have §60(2)] A lawyer may use one client’s
done from the facts. Thus, the facts in (A) confidential information for the benefit
do not subject the attorney to discipline. of another client, even if doing so might
There is nothing impermissible about (B) benefit the lawyer, if the original client
and (D)—laypersons conducting interviews would not be harmed. [ABA Model Rule
and obtaining the interviewees’ signatures 1.9(c)] (B) is incorrect because a lawyer’s
410. PRACTICE EXAM 4

duty of confidentiality does not end when tions, he is subject to discipline. Thus,
the lawyer-client relationship ends. (C) is (B) is correct, and (D) is incorrect. (A) is
incorrect because the attorney did not need incorrect because the attorney received the
her former client’s consent to use his confi- $2,000 settlement and thus was entitled to
dential information in her later practice of the agreed-upon fee. (C) is incorrect not
law. (D) is incorrect for the same reason— because the attorney placed the funds in
the attorney used her former client’s confi- the trust account, but because he failed to
dential information in her later practice of notify his client of the settlement.
law, not in some side venture.
Answer to Question 8
Answer to Question 6
(C) The attorney is not subject to discipline
(C) The defendant’s attorney is not subject to because a lawyer may pay a witness’s reason-
discipline because he did not discuss the able expenses, including travel expenses,
case with the plaintiff. It is permissible hotel, and meals. [Comment 3 to ABA
for a lawyer to talk to a represented party Model Rule 3.4; Restatement §117, comment
without his lawyer’s consent if they do b] (A) is wrong because the payment of
not discuss the subject of the representa- expenses is not an improper inducement. It
tion. [ABA Model Rule 4.2 and comment is simply the attorney’s good fortune that the
4] Because the attorney and the plaintiff trial is in such a desirable tourist spot. (B) is
discussed the charity, the weather, and wrong because it is not improper for lawyers
sports, the attorney did not act improperly. to interview third-party witnesses without
Thus, (A) is wrong. (B) is wrong because notifying the opposing side. (D) is wrong
this is not an ex parte communication. Ex because there is no limitation on expenses
parte means (roughly) “by one party only” other than reasonableness.
and usually refers to contact with the trier
of fact, and here both parties are present Answer to Question 9
and neither is communicating with the trier
of fact. The only limitation on opposing (C) ABA Model Rule 1.5(d)(1) subjects a
parties communicating with one another is lawyer to discipline if the fee in a domestic
the one stated above concerning a lawyer relations matter is contingent upon the
talking to a represented party. (D) is wrong securing of a divorce, the amount of
because the attorney’s knowledge of the alimony or support, or the amount of
seating assignment and his attempt to the property settlement. (A) is incorrect
change it are not dispositive; the dispositive because the size of the fee is irrelevant
fact is that the attorney and the plaintiff did because the ABA Model Rules forbid a
not discuss the case. contingency fee in this situation no matter
what the amount of the fee. Although (B)
Answer to Question 7 states a rationale behind contingency fees,
this rationale will not support a contingency
(B) Under ABA Model Rule 1.15(d), a lawyer fee in this case. (D) is incorrect because a
must promptly notify a client when a third lawyer may, but is not required to, pay or
party turns over money or property to the advance costs to an indigent client.
lawyer to hold on the client’s behalf, and
the lawyer must promptly pay or deliver Answer to Question 10
to the client money or property that the
client is entitled to receive. Because the (D) ABA Model Rule 3.5 prohibits a lawyer
attorney here failed to fulfill these obliga- from communicating with a discharged
 PRACTICE EXAM 4 411.

juror if the communication involves misrep- of the case. Thus, the attorney is not subject
resentation, coercion, duress, or harassment. to discipline for the conduct in (A). On the
[ABA Model Rule 3.5(c)(3)] Thus, the other hand, lawyers are generally subject
lawyer can hire a private investigator only to discipline for attempting to exonerate
if the investigation is not conducted in a themselves from or limit their liability
harassing manner. (A) is incorrect because to their clients for personal malpractice.
the investigator does not need to notify ABA Model Rule 1.8(h)(1) prohibits a
the juror of his investigation or obtain her lawyer from making an agreement to limit
consent. (B) is incorrect because if properly such liability unless the client is indepen-
conducted, there is no reason to believe the dently represented in making the agree-
investigation will affect future jury service. ment. Clearly, these rules encompass the
(C) is incorrect because new evidence situations presented in (B) and (C). (D) is
will not justify the investigation if it is incorrect because under ABA Model Rule
conducted in an improper manner. 1.16(b)(1), a lawyer may withdraw from
representing a client only if the withdrawal
Answer to Question 11 can be accomplished without material
adverse effect on the interests of the client
(D) A lawyer must not represent a client whose or in certain other specific circumstances
interests are directly adverse to those of that do not apply here. On its own, a
another client. [ABA Model Rule 1.7(a)] “feeling that the client might mean trouble”
This conflict of interest is imputed to other is not a permissible ground for withdrawal.
lawyers in the lawyer’s firm. [ABA Model This is especially true because the attorney
Rule 1.10(a)] Because the attorney’s law wants to be able to withdraw “at any time,”
firm is now representing two clients whose even during critical points in the litigation.
interests are directly adverse, it would be Therefore, (A) is correct, and (B), (C), and
proper for the attorney to withdraw from (D) are incorrect.
representation. Thus, (A) and (C) are
Answer to Question 13
wrong. Also, the attorney must maintain his
client’s confidence by not informing his law (D) The attorney’s advertising complies with
partner. [ABA Model Rule 1.6] Thus, (B) is ABA Model Rules 7.1 and 7.2. As long as
wrong. her ad is not false or misleading, she may
properly advertise fee arrangements, fields
Answer to Question 12 of practice such as personal injury, and free
consultations. Thus, (D) is correct, and (A),
(A) Careful lawyers often preserve documents (B), and (C) are incorrect.
that will serve as evidence that they did
not commit malpractice. For example, Answer to Question 14
lawyers may keep copies of court papers
and memoranda, or write their clients (A) A lawyer must not state or imply that he is
letters to record the fact that a particular able to influence improperly or upon irrel-
decision was made by the client contrary evant grounds any tribunal. [ABA Model
to the lawyer’s advice. It appears that the Rule 8.4(e)] (B), (C), and (D) are incorrect
tape recording mentioned in (A) falls under because regardless of the associate’s lack
the category of preserving evidence that of an express prediction or his plans to use
the attorney did not commit malpractice, improper influence on the judge, the state-
because it documents his handling of the ment itself subjects him to discipline.
case, as well as the client’s understanding
412. PRACTICE EXAM 4

Answer to Question 15 in connection with a matter in which

the lawyer participated personally and
(B) The plaintiff filed its complaint in April. substantially as a public employee, unless
The defendant had 20 days after the filing the appropriate government agency gives
date to study the complaint and respond to informed consent, confirmed in writing.
it by answer or otherwise. Starting with day Thus, (A) is incorrect. (B) is incorrect
20, the defendant had a duty not to destroy because even if the attorney did not have
evidence that it either knew or should have confidential information, he substantially
known would be relevant to the case. [See participated in the investigation of the
Computer Associates International, Inc. v. veteran’s claim. (C) is incorrect because the
American Fundware, Inc., 133 F.R.D. 166 disciplinary rule requires responsibility in
(D. Colo. 1990); Wm. T. Thompson Co. v. the matter and not mere public employment
General Nutrition Corp., 593 F. Supp. 1443 in an agency where the case is pending or
(D.C. Cal. 1984)] The defendant was alert casual contact with the case.
enough to ask its attorney whether it would
be all right to follow the usual custom of Answer to Question 17
destroying the former source codes when
creating improved versions of the anti-virus (C) The attorney’s actions were improper
program. The question states that compe- because a lawyer is subject to discipline
tent lawyers in the field know about the for failing to report a disciplinary violation
importance of source codes in copyright committed by another lawyer that raises a
cases involving software. Defense counsel’s substantial question as to the other lawyer’s
nonchalant approval of the defendant’s honesty, trustworthiness, or fitness as a
two acts of destruction made it impossible lawyer. [ABA Model Rule 8.3(a)] Here, the
for the plaintiff to prove the defendant’s other lawyer committed numerous disci-
copying of its software. The judge was plinary violations, including neglecting a
correct in sanctioning the defendant by matter and failing to communicate with a
entering partial summary judgment for the client. His drunk and abusive behavior also
plaintiff on the copying issue, even though indicates an unfitness to practice. (A) is
that is a drastic sanction. The judge was incorrect because the other lawyer was not
likewise correct in sanctioning defense seeking legal services from the attorney and
counsel; if he had been doing his job, the thus is not protected by the duty of confi-
destruction would never have occurred. dentiality. (B) is incorrect because a lawyer
(A) is incorrect because the duty not to has a duty to report a disciplinary violation
destroy relevant evidence does not depend by another lawyer. It is not up to the client,
on the adversary’s formal request for the unless the lawyer’s only knowledge of the
evidence. The duty arises when the litigant violation is through a confidential client
either knows or should know that the communication and the client refuses to
evidence is relevant to the case. (C) and (D) allow disclosure. (D) is incorrect because
are incorrect because both of them state the attorney’s duty is not to encourage the
overly lenient legal standards for imposing client to report the other lawyer, but for the
sanctions on a lawyer who approves the attorney to report the other lawyer herself.
client’s destruction of relevant evidence.
Answer to Question 18
Answer to Question 16
(B) Under ABA Model Rule 5.5(b), a lawyer
(D) ABA Model Rule 1.11(a)(2) states that a must not aid a nonlawyer in the unauthor-
lawyer must not represent a private client ized practice of law. Under these facts, the
 PRACTICE EXAM 4 413.

attorney would improperly be assisting return to the client any advanced fees that
the pastor, who has not in fact been autho- have not yet been earned. [ABA Model
rized to practice law despite his law school Rule 1.16(d)] The fee here was an advance,
degree. (A) makes no sense; the pastor’s not a “true retainer.” Thus, (B) is correct,
potential remedy for the attorney’s mistakes and (D) is incorrect. (A) is incorrect; under
does not subject the attorney to discipline. the ABA Model Rules, the attorney may
(C) is incorrect because any duty a lawyer keep the fees he earned. (C) is incorrect;
may have to educate the public does not the attorney is limited to the portion of the
justify a lawyer’s assisting in the unauthor- $30,000 he earned no matter how much
ized practice of law. (D) is irrelevant. money he could otherwise have made.
Answer to Question 19 Answer to Question 22
(C) A private law firm must not use the name (C) It is not improper for a judge to seek an
of a lawyer who holds public office during outside expert’s advice on legal issues if
any substantial period in which the lawyer the judge informs the parties in advance of
is not regularly and actively practicing with the person to be consulted and the subject
the firm. [See comment 8 to ABA Model matter of the advice to be solicited, and
Rule 7.1] It logically follows that (A) and affords a reasonable opportunity to object
(B) are incorrect. (D) is incorrect because and respond to the notice and advice. [CJC
it states but one underlying justification for Rule 2.9(A)(2)] (A) is incorrect because to
the general rule. seek such help, more is needed than just the
judge’s sincere belief that such help would
Answer to Question 20
be beneficial or even necessary; the judge
(B) Under ABA Model Rule 8.2(a), a lawyer must meet the above requirements. (B)
must not make a statement that the lawyer is incorrect because it does not take into
knows to be false or with reckless disre- account these requirements for such help.
gard as to its truth or falsity concerning (D) is incorrect because written permission
the qualifications or integrity of a judge. alone is insufficient.
The ADA’s sweeping statement to the news
media regarding the judge appears to be Answer to Question 23
just such an unrestrained and intemperate
action as to lessen public confidence in (B) If a client disputes the amount that is due
the legal system. Also, it appears to have to the lawyer, then the disputed portion
been made with reckless disregard as to its must be kept in a client trust account until
truth or falsity. Thus, (B) is correct, and the dispute is resolved. [ABA Model Rule
(D) is incorrect. (A) is incorrect because 1.15(e)] Choice (B) describes precisely what
the ADA’s status as a public official is not the lawyer should do. Thus, (B) is correct,
the key here; it is his status as a lawyer and (A), (C), and (D) are incorrect.
that brings the ethics rules into play. (C) is
Answer to Question 24
incorrect because the timing of the state-
ment does not make it proper. (C) During the course of a lawyer’s representa-
Answer to Question 21 tion of a client, the lawyer should not give
advice to an unrepresented person, other
(B) When an attorney-client relationship is than the advice to obtain counsel, if the
prematurely terminated (either by the client’s interests conflict with those of the
attorney or by the client), the attorney must unrepresented person. [ABA Model Rule
414. PRACTICE EXAM 4

4.3] In this case, the attorney urged the public and serve a legitimate law enforce-
woman to retain counsel. He gave her no ment purpose. [ABA Model Rule 3.8(f)] (A)
other advice. Thus, he is not prohibited is proper because a lawyer may announce
from negotiating with her. (A) and (B) are that a party has been charged with a crime,
irrelevant. (D) is incorrect as, even if this provided there is an accompanying state-
were a criminal matter, the attorney is a ment that the charge is only an accusation
private lawyer—not one employed as a and the party is deemed innocent until
prosecutor. proven guilty. [ABA Model Rule 3.6(b)
and comment 5] (C) is proper because the
Answer to Question 25 public may be warned about the behavior
of a person likely to result in harm to the
(B) This is correct because it presents a sound public. [ABA Model Rule 3.6(b)(6)] (D) is
reason for the inclusion of a home telephone proper because a prosecutor is not required
number and a fax number in the ad. (A) to answer questions by the press.
is incorrect because some limitations on
lawyer advertising (e.g., the ban on false or Answer to Question 28
misleading ads) are constitutional. (C) and
(D) are incorrect because nothing in the (B) Here, there is a potential conflict because
ABA Model Rules can constitutionally bar the partner’s actions against the unincor-
use of a home telephone number or a fax porated division of the telecommunica-
number in lawyer advertising. tions company could be affected by the
firm’s past and possibly future representa-
Answer to Question 26 tion of the telecommunications company.
It would be proper that disclosure of the
(D) A lawyer must not be a party to, or partici- conflict of interest be made to the manufac-
pate in, a partnership or employment turing company. [ABA Model Rule 1.7(b)]
agreement with another lawyer that restricts Thus, (B) is correct and (D) is incorrect.
the right of a lawyer to practice law after (A) is incorrect because disclosure to and
the termination of a relationship created consent by the manufacturing company
by the agreement, except as a condition to will allow the partner to continue to repre-
the payment of retirement benefits. [ABA sent the manufacturing company without
Model Rule 5.6(a)] (A), (B), and (C) restrict being subject to discipline. (C) is incor-
in some way the novice attorney’s right to rect because the partner must obtain the
practice law after terminating the relation- manufacturing company’s consent even if
ship with the attorney, but (D) does not. the matters are routine.
Thus, (D) is correct.
Answer to Question 29
Answer to Question 27
(B) When a lawyer seeks to influence legisla-
(B) (B) is not proper because it includes an tion and is purporting to act in the public
extrajudicial statement regarding the interest (rather than as an advocate for a
credibility of witnesses. [ABA Model Rule client), the lawyer should espouse only
3.6(a) and comment 5] Furthermore, a those positions he believes to be in the
prosecutor in a criminal case must refrain public interest. ABA Model Rule 6.4
from making extrajudicial statements that imposes an additional requirement: “When
have a substantial likelihood of heightening the lawyer knows that the interests of a
public condemnation of the accused unless client may be materially benefited by a
the statements are necessary to inform the [law reform] decision in which the lawyer
 PRACTICE EXAM 4 415.

participates, the lawyer shall disclose that confidentiality. (A) is incorrect because the
fact but need not identify the client.” Thus, man consulted the attorney in her capacity
(B) is correct, and (C) is incorrect. (A) is as a lawyer, and it is irrelevant that he did
incorrect because the lawyer in this situa- not retain her. (B) is incorrect because the
tion also has a duty to the public. (D) is attorney may not reveal information, even
incorrect because if he complies with the if it will help the client, unless the client
ethical obligations above, he may properly consents or the information falls into recog-
vote on the matter. nized exceptions to the confidentiality rule,
which are not present here.
Answer to Question 30
Answer to Question 33
(A) If a client voluntarily offers to make a gift
to his lawyer, the lawyer may accept the (A) When dealing on behalf of a client with an
gift without being subject to discipline. unrepresented person, a lawyer must not
[Comment 6 to ABA Model Rule 1.8] (B) give advice to the unrepresented person,
is incorrect because ABA Model Rule 1.8 other than the advice to obtain counsel, if the
does not require a client to discuss a gift interests of the client conflict with those of
such as the one in this case with an outside the unrepresented person. [ABA Model Rule
party. (C) is incorrect because the vase 4.3] Because the attorney was representing
is not a payment of a fee—it is a gift; an the company, and the company’s interests
unexpected, unrequested gratuity. (D) is conflict with those of the accountant, the
incorrect because, as stated above, a lawyer attorney should not have given the accountant
may accept a gift. advice (told him not to worry), other than to
secure counsel. (B) is incorrect because it is
Answer to Question 31 too broad. (C) is incorrect because furthering
a client’s interest does not excuse violation
(A) This is the best answer here because ABA of the ethics rules. (D) is incorrect because
Model Rule 7.2(b) prohibits a lawyer from the ethics rules apply regardless of whether a
giving anything of value in return for a lawsuit has been filed.
recommendation of the lawyer’s services.
Therefore, (A) is correct, and (C) is incor- Answer to Question 34
rect because “value” does not necessarily
mean that cash has changed hands. (B) is (A) The objection should be sustained because
incorrect because there is no such restric- the communication falls under the attorney-
tion in the ABA Model Rules. (D) is incor- client privilege. [See generally comment 3 to
rect because Supreme Court decisions ABA Model Rule 1.6] When the client is a
broadening the range of advertising and corporation, the privilege covers communi-
solicitation have not extended into the area cations between the lawyer and an employee
of referral fees, and in fact allow the bar to of the corporation if: (1) the employee
ban misleading advertising. communicates with the lawyer at the direc-
tion of his superior; (2) the employee knows
Answer to Question 32 the purpose of the communication is to
obtain legal advice for the corporation; and
(D) A lawyer may reveal or use confidential (3) the communication concerns a subject
information if the client gives informed within the scope of the employee’s duties.
consent. [See ABA Model Rules 1.6, 1.18] Here, the buyer was directed to speak
(C) is incorrect because it does not take into with the company attorney about buying
account exceptions to the general rule of practices, and he believed the reason was
416. PRACTICE EXAM 4

to procure advice for the company. (B) is misuse of trust funds was confidential and
wrong because the company is the client not subject to any exception. The ABA
and is claiming the privilege on its own Model Rules contain an exception to the
behalf, not the buyer’s. (C) is wrong because duty of confidentiality when the lawyer
the company, the client, was seeking the reasonably believes it necessary to prevent
attorney’s legal services, and the company an act that is reasonably certain to cause
is claiming the privilege. Likewise, (D) is death or substantial bodily harm. [ABA
wrong because the privilege is not abrogated Model Rule 1.6(b)(1)] Here, the information
by the buyer’s dismissal. concerned past, not future, acts and did not
concern any future action that could lead to
Answer to Question 35 death or substantial bodily harm. The ABA
Model Rules also contain an exception to
(B) The attorney’s actions were proper because the duty of confidentiality when the client
she did not offer false evidence, and she is intends on committing a crime or fraud that
under no duty to volunteer harmful facts. is reasonably certain to cause substantial
[See ABA Model Rule 3.3; comment 14 financial harm to someone, if the client is
to ABA Model Rule 3.3] In fact, to do using or has used the lawyer’s services in
so would probably be a breach of ethics. the matter. [ABA Model Rule 1.6(b)(2)]
(A) is incorrect because her actions were Here, the trustee has not expressed an intent
proper regardless of the constitutional to commit a future crime or fraud that
protections afforded criminal defendants. would result in substantial financial injury
(C) is incorrect because a lawyer is under to his deceased sister’s children. Thus,
no obligation to volunteer harmful facts (A) is incorrect. (B) is incorrect because
in an adversarial proceeding even if the the duty of candor to the tribunal does not
jury will be misled by the testimony of a entail revealing confidential information
witness. It is up to the state to establish unless necessary to prevent a fraud on the
the time of the crime; if it cannot do so, tribunal. Here, the attorney did not offer
it has not met its burden of proof. (D) is false evidence of any kind or make or allow
incorrect because the attorney should not anyone to make any misleading statements.
disclose the facts to anyone, not even the (D) is incorrect because had the informa-
judge. These facts are information related tion not been confidential, the attorney
to the case and cannot be disclosed or would have a duty to bring it to the court’s
used to the client’s disadvantage absent attention, regardless of whose duty it is to
some recognized exception to the duty of supervise a trustee.
confidentiality. None applies here. Had the
attorney presented a witness (other than Answer to Question 37
the accused) who testified that the time
was midnight when the attorney knew (C) The rule that conflicts of interest are
it was 10 p.m., the attorney would have imputed to all lawyers who work in the
had to rectify the false testimony. Here, same office does not ordinarily apply
however, the testimony came from the to the advocate-witness rule. [See ABA
opponent, and the attorney is under no Model Rule 3.7(b)] Thus, (A) and (B) are
obligation to rectify it. incorrect; the advocate-witness rule would
prevent the lawyer himself from serving as
Answer to Question 36 the corporation’s trial counsel, but it does
not prevent his law partner from serving
(C) The attorney is not subject to discipline as such. The imputation rule does apply,
because the information concerning the however, if there is some other kind of
 PRACTICE EXAM 4 417.

conflict of interest caused by a lawyer’s (B) are incorrect. (D) is incorrect; the
role as witness. [Id.] Suppose, for example, attorney need not inform opposing counsel
that the lawyer’s testimony would contra- before writing to the judge.
dict the corporation president’s testimony
rather than corroborate it. If that were Answer to Question 40
true, it would create a conflict under ABA
Model Rule 1.7(a) between the lawyer’s (A) When a civil case is pending, a litigant
own interest (telling the truth) and the must not destroy or conceal documents
corporation’s interest (proving the repre- that the litigant knows are either relevant
sentation was made). That conflict could or likely to be requested by the adversary.
well be so serious that even the corpora- [See United States v. Lundwall, 1 F. Supp.
tion’s informed consent could not overcome 2d 249 (S.D.N.Y. 1998)] The attorney
it. No such situation is presented here, and would, of course, be subject to litigation
the law partner may therefore serve as the sanctions in the civil case itself, and she
corporation’s trial counsel. (C) is better could also be disciplined by the bar, but
than (D) because (C) correctly invokes the criminal liability for obstruction of justice
principles of ABA Model Rule 3.7(b), while is also appropriate in a blatant case such as
(D) invents a bogus “merely corroborative” this. [Id.] (C) is wrong for the reason just
exception to the advocate-witness rule. stated. (B) is wrong because it is too broad;
when a civil case is pending, a litigant may
Answer to Question 38 destroy documents that the litigant does
not believe are either relevant or likely
(A) In an emergency, a lawyer may assist a to be requested by the adversary. (D) is
client, even if the lawyer does not have wrong because it is not necessary that the
the skill ordinarily required in the field in documents have already been requested by
question. However, the assistance should the adversary.
not exceed what is reasonably necessary
to meet the emergency. [See comment Answer to Question 41
3 to ABA Model Rule 1.1] (B) is incor-
rect because ordinarily a lawyer should (C) A judge should disqualify herself in a
be competent to handle a particular issue proceeding in which her impartiality might
before accepting a case. [ABA Model Rule reasonably be questioned, including but not
1.1] (C) is incorrect because an emergency limited to instances where she served as
is involved. (D) is incorrect because an lawyer in the matter in controversy. [CJC
attempt to limit malpractice liability makes Rule 2.11(A)(6)(a)] The fact that these
a lawyer subject to discipline. matters are routine or uncontested does not
excuse her from this rule; thus (A) is incor-
Answer to Question 39 rect. (B) is incorrect because avoiding delay
does not allow a judge to ignore CJC Rule
(C) ABA Model Rule 3.5(b) prohibits ex parte 2.11(A)(6)(a). (D) is incorrect because it is
communications by a lawyer with a judge too broad.
except as permitted by law. Lawyers may
generally communicate with a judge in Answer to Question 42
writing if the lawyer sends a copy to the
adversary. [Restatement §113, comment c] (C) The attorney suggested a title search for the
Thus the attorney’s letter could be proper property. Upon learning that his client did
only if a copy was sent to the opposing not want to spend money for it, he was not
counsel. Thus, (C) is correct, and (A) and required to order the search and pay for it
418. PRACTICE EXAM 4

himself, or to try to force her to pay for it. 7.2(b)] Thus, (A) is correct, and (D) is
All he can do is give advice. If his client incorrect. While a lawyer has the option
unwisely decides to accept only part of that of waiving a fee, under these facts, the
advice, and suffers because of it, the client attorney is in fact rewarding the society for
cannot successfully sue him for malprac- past referrals, and so (C) is incorrect. (B)
tice. The client’s injury cannot be said to is incorrect; a lawyer may give free legal
have been proximately caused by any negli- services to wealthy people if he chooses
gence on the part of the lawyer. Thus, (C) is and if he does not violate the ethics rules.
correct, and (A) and (B) are incorrect. (D)
is irrelevant. Answer to Question 45

Answer to Question 43 (B) (A) is incorrect because unsubstantiated

statements of comparison are improper.
(B) It would be proper for the attorney to inter- [See comment 3 to ABA Model Rule 7.1]
view both witnesses, but for the others, he Conversely, (D) is incorrect because the
must first obtain defense counsel’s consent. federal Constitution protects many ads that
A lawyer must obtain the consent of an are in bad taste, self-serving, and designed
organization’s counsel before communi- to attract business. The difficult choice
cating with: (1) a person who supervises, is between (B) and (C). Although state-
directs, or consults with the organization’s ments that fail to state material information
lawyers about the matter (here, the foreman are considered misleading and therefore
and the plant manager); (2) a person whose improper [ABA Model Rule 7.1], the
conduct may be imputed to the organi- attorney has clearly stated that the low rate
zation for purposes of criminal or civil applies only to uncontested divorces and
liability (the foreman and the plant manager does not imply in any way that contested
again); or (3) a person whose statements divorces can be obtained for the same rate.
may constitute an admission by the organi- Therefore, (B) is a better answer than (C).
zation (again, the foreman and the plant
manager). [Comment 7 to ABA Model Rule Answer to Question 46
4.2] Consent is not needed, however, before
talking with a former employee. Thus, the (D) ABA Model Rule 8.2(a) bars lawyers from
attorney can speak to the witness who no making false statements about candidates
longer works for the defendant without for the judiciary. Furthermore, CJC Rule
defense counsel’s consent. Likewise, 4.1(A)(11) prohibits a judicial candidate
consent of defense counsel is not necessary from knowingly, or with reckless disregard
to interview an employee who is merely for the truth, making a false or misleading
a witness to the incident in question and statement. The question states that all the
is neither a management employee nor facts in the statements are accurate. Thus,
involved in the incident. Thus, the attorney (A), (B), and (C) are proper. However, in
may interview the witness who still works (D), the assertion that she will not be soft
for the defendant without defense counsel’s on crime violates CJC Rule 4.1(A)(13),
consent. which prohibits a judicial candidate from
making pledges, promises, or commit-
Answer to Question 44 ments, with respect to cases, controversies,
or issues that are likely to come before the
(A) A lawyer must not give anything of value court, that are inconsistent with the impar-
to a person (or organization) for recom- tial performance of the adjudicative duties
mending his services. [ABA Model Rule of the office.
 PRACTICE EXAM 4 419.

Answer to Question 47 action to protect the landowner’s inter-

ests. Under the circumstances, appropriate
(D) CJC Rule 2.5 requires a judge to perform protective action would include communi-
his duties competently and diligently. cating the landowner’s wishes to the son,
Comment 3 to that rule explains that a who will be in a position to distribute part
judge should ensure that court officials, of his father’s estate to the niece. (C) is the
litigants, and their lawyers cooperate with best answer because the attorney is acting
the judge in disposing of matters promptly. in a manner consistent with the best inter-
Thus, (D) is correct, and (A), (B), and ests of his client, and because his client is
(C) are incorrect. A judge may choose to unable to make any decisions or express
promote settlements only if such policy his wishes, the attorney is advancing the
does not conflict with other requirements interests of his client as stated by the client
for proper judicial conduct. prior to his coma. Thus, (C) is correct, and
(A) and (B) are incorrect. (D) is incorrect
Answer to Question 48 because the son should exercise complete
discretion without outside influence in
(C) ABA Model Rule 3.9 requires that a lawyer deciding whether to carry out his father’s
reveal the fact that he is appearing before a wishes.
legislative body in a representative capacity.
(A) is incorrect because a client’s specific Answer to Question 50
instructions do not vitiate the ethical rules.
(B) is incorrect because a lawyer must (B) A lawyer may state his area of concentra-
volunteer the fact that he is appearing in tion. [Comment 9 to ABA Model Rule
a representative capacity. (D) is incorrect 7.2] Note that the attorney must not state
because it is an overbroad statement that or imply that he has been certified as a
does not deal with the specific ethical issue specialist unless he satisfies ABA Model
at hand with the exactitude of (C). Rule 7.2(c). Choice (A) is improper because
it implies that the attorney can obtain
Answer to Question 49 results by improper means; i.e., it implies
that he receives favorable treatment because
(C) When a lawyer reasonably believes that his his father and grandfather are judges. [ABA
client has diminished capacity, is at risk Model Rule 8.4(e)] Choice (C) is improper
of substantial physical, financial, or other because it creates unjustified expectations.
harm unless action is taken and cannot Lawyers are generally not permitted to
adequately act in the client’s own interest, advertise their track record. [Comment 3
the lawyer may take reasonably necessary to ABA Model Rule 7.1] In two years, the
protective action. Protective action may attorney may have only tried one or two
include consulting with individuals who jury cases, and the people who received
have the ability to take action to protect some form of payment may have received
the client. When taking protective action, very small settlements. Choice (D) is
the lawyer is impliedly authorized under improper because it makes an unverifiable
Rule 1.6(a) to reveal information about comparison between the attorney and other
the client to the extent reasonably neces- lawyers. [Id.]
sary to protect the client’s interests. [ABA
Model Rule 1.14] Here, the landowner has Answer to Question 51
diminished capacity because he is in a
coma and cannot vocalize his wishes. Thus, (D) The attorney advertises his practice in the
the lawyer is authorized to take protective western state, he meets with clients in his
420. PRACTICE EXAM 4

home in that state, and he regularly repre- speak out publicly on issues concerning
sents drunk driving clients in that state’s the law, reasoning that judges are uniquely
courts. Thus, he maintains a “systematic qualified to engage in activities that concern
and continuous presence” for the practice the law, the legal system, and the adminis-
of law in the western state. [See ABA tration of justice. Choices (B) and (D) are
Model Rule 5.5(b) and comment 4] That not true for the same reason.
makes him subject to discipline for the
unauthorized practice of law, and it gives Answer to Question 53
the western state jurisdiction to discipline
him. [See ABA Model Rule 8.5(a)] Further- (A) ABA Model Rule 6.5 loosens the ordinary
more, the attorney’s response to the judge’s conflict of interest rules for legal service
question, though literally true, was artfully programs that are sponsored by a nonprofit
misleading and that makes him subject to organization or a court and that provide
discipline. [See ABA Model Rule 3.3(a)(1) quick, short-term legal advice without any
and comment 2; ABA Model Rule 8.4(c)] expectation that the lawyer-advisor will
(A) is wrong because the attorney maintains continue to represent the client-advisee in
a systematic and continuous presence for the matter. When a lawyer dispenses advice
the practice of law in the western state, in such a program, ABA Model Rule 6.5(b)
and because his response to the judge was modifies the ordinary rule of imputed
misleading. (B) is wrong because ABA disqualification, thus making it possible for
Model Rule 8.5(a) permits the western state someone else in the lawyer’s firm to repre-
to discipline the attorney for unauthorized sent a client whose interests are adverse to
practice in the western state. Although (C) the advisee. [See comment 4 to ABA Model
is correct in part, (D) is the better answer Rule 6.5] (B) is wrong because ABA Model
because it additionally acknowledges that Rule 6.5 does not require consent of the
the western state’s bar can discipline the affected clients. (C) is wrong because ABA
attorney for the unauthorized practice of Model Rule 6.5 does not require any of the
law in the western state. three things listed in that answer choice.
(D) is wrong because ABA Model Rule 6.5
Answer to Question 52 does not require such a promise, nor would
such a promise solve any other kind of
(C) Lawyers are permitted to participate in the conflict problem.
political process, except when the law or
a legal ethics rule prohibits it. The legal Answer to Question 54
ethics rule nearest to the point is ABA
Model Rule 7.6, which prohibits a lawyer (B) ABA Model Rule 8.4(c) makes a lawyer
from making a political contribution for the subject to discipline by the bar for engaging
purpose of securing judicially appointed in “conduct involving dishonesty, fraud,
legal work. That rule does not apply here deceit, or misrepresentation.” The novice
for two reasons. First, the rule does not attorney’s dishonesty toward passengers
apply to voter initiatives and referendums, and the taxi company makes him subject
and second, the rule does not apply to to discipline by the bar, even though the
contributions of uncompensated services. dishonesty did not occur in connection
[Comment 2 to ABA Model Rule 7.6] with his law practice. [See comment 2 to
Choice (A) is not true. CJC Rule 3.1 allows ABA Model Rule 8.4] (A) is wrong because
judges to engage in extrajudicial activities the novice attorney’s taxi driving is not a
that are not otherwise prohibited. Comment “law-related service” within the meaning
1 to CJC Rule 3.1 encourages judges to of ABA Model Rule 5.7(b). Therefore,
 PRACTICE EXAM 4 421.

he need not follow all of the legal ethics work must be honored by the purchaser.”
rules when he drives the taxi. He must, [Comment 10 to ABA Model Rule 1.17]
however, refrain from conduct that violates When a lawyer buys a law practice, she is
ABA Model Rule 8.4, which applies to “required to undertake all client matters in
everything a lawyer does. [See comment 2 the practice . . . subject to client consent,”
to ABA Model Rule 5.7] (C) is wrong. A except when she cannot do so because of
solicitation is a communication initiated by a conflict of interest. [Comment 6 to ABA
a lawyer or firm that is directed to a specific Model Rule 1.17] The reason ABA Model
person that the lawyer knows (or reason- Rule 1.17 requires the sale of an entire
ably should know) needs legal services practice, or area of practice, is to protect
in a particular matter, and that offers to “those clients whose matters are less lucra-
provide legal services for that matter. With tive and who might find it difficult to secure
certain exceptions, a lawyer is prohibited other counsel if a sale could be limited
from using live person-to-person contact to substantial fee-generating matters.”
to solicit professional employment. [ABA [Comment 6 to ABA Model Rule 1.17] In
Model Rule 7.3] Here, there is no indication short, ABA Model Rule 1.17 seeks to protect
that the novice lawyer gives his business the very clients that the purchaser put into
card to passengers known to need legal her “likely loser” pile. She should be disci-
services in any particular matter; he simply plined for her empty, but coercive, threat to
gives his card to passengers who appear to withdraw if the “likely loser” will not agree
be prosperous businesspeople and advises to a higher fee because ABA Model Rule
them to contact him if they ever need a 1.16 would not permit her to withdraw in
lawyer. Thus, the novice attorney’s actions these circumstances. (C) is wrong for the
do not constitute solicitation. However, same reasons discussed above. (A) is wrong
even though this answer choice recites a because there is no disciplinary rule against
true statement, it is incorrect because the selling a law practice to the highest bidder.
novice lawyer is still subject to discipline Note, however, that Comment 11 to ABA
for his dishonesty relating to the taxi meter. Model Rule 1.17 imposes an ethical obliga-
(D) is wrong because the novice attorney’s tion on the seller “to exercise competence
dishonesty toward passengers and the taxi in identifying a purchaser qualified to . . .
company makes him subject to discipline undertake the representation competently.”
by the bar even though the dishonesty (D) is wrong because the attorney did not
did not occur in connection with his law fulfill the ethical obligation just quoted; if
practice. he had done so, he would have discovered
that the purchaser was inexperienced in
Answer to Question 55 the field and had twice been disciplined for
client neglect and client abandonment.
(B) A lawyer is expected to “carry through
to conclusion all matters undertaken for a Answer to Question 56
client” [Comment 4 to ABA Model Rule
1.3], unless the client fires the lawyer or (B) Comment 15 to ABA Model Rule 1.6
the lawyer terminates the relationship by explains what a lawyer should do when
a mandatory or permissive withdrawal in push comes to shove with a judge about a
accordance with ABA Model Rule 1.16. privilege issue: “A lawyer may be ordered to
Furthermore, in the sale of a law practice, reveal information relating to the representa-
“existing agreements between the seller and tion of a client by a court or another tribunal
the client as to fees and the scope of the or government entity claiming authority
422. PRACTICE EXAM 4

pursuant to other law to compel disclosure. violation” of the securities laws or similar
Absent informed consent of the client to laws. The regulations use a tricky double
do otherwise, the lawyer should assert on negative to define “evidence.” “Evidence”
behalf of the client all nonfrivolous claims means “credible evidence, based upon
that the order is not authorized by other law which it would be unreasonable, under the
or that the information sought is protected circumstances, for a prudent and competent
against disclosure by the attorney-client attorney not to conclude that it is reason-
privilege or other applicable law. In the ably likely that a material violation has
event of an adverse ruling, the lawyer must occurred . . . .” [17 C.F.R. §205.2(e)] The
consult with the client about the possibility SEC’s comment on that definition says
of appeal . . . . Unless review is sought, that a lawyer is “not required (or expected)
however . . . [the lawyer may] comply with to report ‘gossip, hearsay, or innuendo.’”
the court’s order.” (A) is wrong. Here the [Id.] If a reasonable lawyer would doubt
judge spoke condescendingly to the defense the credibility of the employee’s scrap
attorney, in violation of CJC Rule 2.8(B), of anonymous hearsay, that is more than
which requires a judge to be “patient, enough to satisfy the double negative
dignified, and courteous to litigants, jurors, and thus to excuse the outside attorney
witnesses, lawyers, court staff, court from reporting the story to the company’s
officials, and others with whom the judge chief legal officer. Thus, (B) is correct.
deals in an official capacity.” However, (D) is incorrect because the “evidence of
that does not license the defense attorney a material violation” standard does not
to be disrespectful in response. Comment require that the lawyer have actual knowl-
4 to ABA Model Rule 3.5 explains that edge of the violation. (A) is incorrect
“refraining from abusive or obstreperous because the outside attorney must obey the
conduct is a corollary of the advocate’s right SEC’s Sarbanes-Oxley regulations because
to speak on behalf of litigants. A lawyer he is advising a securities issuer about a
may stand firm against abuse by a judge document that will be filed with the SEC.
but should avoid reciprocation; the judge’s [See 17 C.F.R. §205.2(a)] (C) is incorrect
default is no justification for similar derelic- for two reasons. First, the employee herself
tion by an advocate.” (D) is wrong for the is not in a privileged relationship with the
same reason, although it is milder than outside attorney, and her volunteered gossip
(A). (C) is wrong because giving the judge probably would not be protected by the
a free and unauthorized look at the patent corporation’s attorney-client privilege. [See
counsel’s letter could seriously prejudice Upjohn Co. v. United States, 449 U.S. 383
the defendant, especially if the judge will (1981); but see Restatement §73, comments
be presiding over further proceedings in the d, f, and h] Second, even if her state-
case. The attorney-client privilege belongs ment were protected by the corporation’s
to the defendant, not to the defense attorney, attorney-client privilege, a disclosure by
and the defense attorney should not waive the outside attorney to the company’s chief
it without talking over the options with her legal officer would not waive or destroy the
client. [See comments 15 and 16 to ABA privilege.
Model Rule 1.6]
Answer to Question 58
Answer to Question 57
(A) ABA Model Rule 1.8(c) expressly governs
(B) The SEC regulations require a lawyer to this situation. According to this subsection,
report up the corporate ladder if the lawyer a lawyer may not “prepare on behalf of a
comes across “evidence of a material client an instrument giving the lawyer . . .
 PRACTICE EXAM 4 423.

any substantial gift unless the lawyer . . . is licensed in a different state only. The
is related to the client.” The clarity of this litigator who was hired by the theater
provision renders (A) the correct choice. company to represent the company at
(B) is incorrect because a lawyer may draft the arbitration may represent the theater
a will in which the lawyer is a beneficiary, company in the arbitration in the state
but the prerequisite for doing so is that the in which the arbitration is to take place
client must be a relative. (C) is incorrect because the arbitration arises from the law
because inducement is not a prerequisite for firm’s representation of the theater company
the application of this portion of the rule. in the theater company’s home state. [See
(D) is incorrect because although, assuming ABA Model Rule 5.5(c)(3)] Furthermore,
competency, the client may indeed leave it was proper for the copyright attorney
his property to whomever he chooses, if who represented the theater company in
he wishes to leave property to a lawyer to the license negotiations to negotiate the
whom he is unrelated, he will have to retain copyright license in the state in which the
a different lawyer to draft his will. negotiations took place because the negotia-
tions are reasonably related to the law firm’s
Answer to Question 59 representation of the theater company in the
theater company’s home state. [See ABA
(D) ABA Model Rule 4.4(b) says that if a Model Rule 5.5(c)(4)] (A) is wrong with
lawyer receives a document or electroni- respect to both the copyright attorney and
cally stored information relating to the the litigator. (C) is wrong with respect to
lawyer’s representation of a client, and if the copyright attorney. (D) is wrong with
the lawyer “knows or reasonably should respect to the litigator.
know that the document or electronically
stored information was inadvertently sent,
[the lawyer] shall promptly notify the
sender.” ABA Model Rule 4.4 does not
touch on several related questions on which
state law is presently split. These include
whether the receiving lawyer must return
the errant document to its sender or delete
the electronically stored information, and
whether a lawyer’s transmission error can
waive a privilege. (A) and (B) are wrong
because they do not require the plaintiff’s
attorney to notify the sender about the
mistake. (C) is wrong for two reasons. First,
it does not require the plaintiff’s attorney
to notify the sender. Second, it needlessly
shames defense counsel and involves the
judge in a matter that does not need a
judge’s attention.

Answer to Question 60

(B) The governing rule here is ABA Model

Rule 5.5(c), which concerns temporary
law practice in one state by a lawyer who
CONVISER MINI REVIEW
 PROFESSIONAL RESPONSIBILITY MINI REVIEW I.

PROFESSIONAL RESPONSIBILITY MINI REVIEW

I. REGULATION OF THE LEGAL PROFESSION

A. SOURCES OF REGULATION
1. The State
States may regulate the practice of law in the exercise of their police powers. State
courts, not state legislatures, have the ultimate power to regulate the legal profes-
sion.

a. Courts
The ultimate power of regulating the legal profession rests with the highest
state court. Additionally, case law, rules of court, and state statutes are used in
governing the practice of law.

1) Ethics Rules—ABA Model Rules and Judicial Code

Most states have adopted ethics rules patterned after models drafted
by the American Bar Association (“ABA”). The majority of states have
rules patterned after the Model Rules of Professional Conduct, while
the remainder base their rules on the older Model Code of Professional
Responsibility. Similarly, most states have enacted some version of the ABA
Model Code of Judicial Conduct.

b. Bar Associations
Each state has a bar association. A majority of states have “integrated” bars,
meaning that one must be a member of the bar association to practice law
in the state. Administration of bar examinations, provision of continuing legal
education programs, and assistance with discipline are functions of state bar
associations.

c. Legislature
All state legislatures have enacted statutes governing some aspects of legal
practice.

2. The Federal System

Each federal court has its own bar, to which an attorney must belong in order to
practice before that court. Federal practice is governed by federal statutes, case law,
and court or agency rules. Federal government attorneys are subject to state ethics
laws and rules in each state where the attorneys engage in their duties.

3. Regulation by Multiple States

A lawyer is subject to regulation by each state in which she is admitted to practice.
II. PROFESSIONAL RESPONSIBILITY MINI REVIEW

B. ADMISSION TO THE PRACTICE OF LAW

1. The Application

a. False Statements
In connection with an application to the bar or a bar disciplinary matter, an appli-
cant or lawyer must not knowingly make a false statement of material fact.

b. Failure to Disclose Information

In connection with an application to the bar or a bar disciplinary matter, an appli-
cant or lawyer must not: (1) fail to disclose a fact that is necessary to correct a
misapprehension known by the applicant or lawyer to have arisen in the matter,
or (2) fail to respond to a lawful demand for information. These obligations do
not apply to information protected by the ethical duty of confidentiality.

2. Character and Fitness—“Good Moral Character”

Bar applicants are usually required to demonstrate that they are of good moral
character. If a question arises as to an applicant’s honesty and integrity, the applicant
may be asked to appear at a hearing before the admissions committee, where the
applicant will be afforded procedural due process rights.

a. Relevant Conduct
All aspects of an applicant’s past conduct are subject to review. An applicant’s
criminal conduct (conviction unnecessary) and other acts constituting moral
turpitude (e.g., false statements or concealment of past conduct to admissions
committee) are grounds for the denial of his application for admission to the bar.
However, evidence of the applicant’s rehabilitation will be considered. Note
that an applicant’s mere membership in an organization such as the Communist
Party (without an indication that he advocated the violent overthrow of the
government) is insufficient to show lack of moral character.

3. Citizenship and Residency—Not Valid Requirements

A requirement that an applicant be a United States citizen or a citizen of a state is
unconstitutional.

C. REGULATION AFTER ADMISSION

1. What Constitutes Professional Misconduct
A lawyer is subject to discipline not only for violating a disciplinary rule, but also for
any of the following types of conduct:

a. Attempting to violate a disciplinary rule;

b. Assisting or inducing another person to violate a disciplinary rule;

 PROFESSIONAL RESPONSIBILITY MINI REVIEW III.

c. Using the acts of another person to violate a disciplinary rule;

d. Engaging in criminal conduct that shows dishonesty, untrustworthiness, or

unfitness to practice law;

e. Engaging in any conduct involving dishonesty, fraud, deceit, or misrepresenta-

tion;

f. Engaging in conduct that is prejudicial to the administration of justice;

g. Stating or implying an ability to improperly influence a government agency or

official or to achieve results by means that violate the law or legal ethics rules;

h. Knowingly assisting a judge in conduct that is illegal or that violates the Code
of Judicial Conduct; or

i. Engaging in discrimination or harassment in conduct related to the practice

of law on the basis of race, sex, religion, national origin, ethnicity, disability,
age, sexual orientation, gender identity, marital status, or socioeconomic status.
(Note that this rule does not limit a lawyer’s ability to reject a case or provide
legitimate advice or advocacy consistent with the RPC.)

2. Duty to Report Professional Misconduct

A lawyer is subject to discipline for failing to report a disciplinary violation committed
by another lawyer. The ABA Model Rules limit that duty to disciplinary violations that
raise a substantial question as to the other lawyer’s honesty, trustworthiness, or
fitness as a lawyer. A lawyer’s obligation to report disciplinary violations by judges
is the same as that concerning violations by lawyers. The duty to report does not, of
course, apply to information that is protected by the ethical duty of confidentiality or
information gained by a lawyer or judge while serving as a member of an approved
lawyers’ assistance program designed to help lawyers and judges with substance
abuse problems.

3. Disciplinary Process
Disciplinary proceedings against a lawyer begin when a complaint is filed with the
state disciplinary authority. If the complaint is not dismissed, the lawyer is requested
to respond to the charges, and the grievance committee will investigate the charges
and may hold a hearing on the matter. At the hearing, the accused lawyer is entitled
to procedural due process. If discipline is imposed, the lawyer is entitled to review of
the decision by the state’s highest court.

4. Choice of Law in Disciplinary Proceedings

Generally, if a lawyer’s alleged misconduct is related to a proceeding that is pending
before a tribunal, the ethics rules of the jurisdiction in which the tribunal sits will be
applied, unless the tribunal’s rules provide otherwise. For any other conduct, the
IV. PROFESSIONAL RESPONSIBILITY MINI REVIEW

rules of the jurisdiction in which the conduct occurred will apply, but if the predomi-
nant effect of the conduct is in some other jurisdiction, that jurisdiction’s rules will
apply. Regarding conflicts of interest only, a lawyer and client may enter into an
advance written agreement specifying the “predominant effect” jurisdiction. If the
agreement is entered into with the client’s informed consent, and the client later
tries to disqualify the lawyer from another matter or files a disciplinary complaint, the
court or disciplinary authority may consider the agreement in determining whether
the lawyer reasonably believed the jurisdiction’s rules would apply.

5. Effect of Sanctions in Other Jurisdictions

Under the majority view, sister states accept disciplinary action by one state
as conclusive proof of a lawyer’s misconduct, but are free to impose their own
sanctions. However, each federal court makes an independent evaluation, accepting
as competent evidence the lawyer’s discipline by a state.

6. Disability Proceedings
Most jurisdictions have proceedings for incapacitated lawyers (e.g., those suffering
from substance abuse), which result in the lawyers’ suspension from the practice of
law. Diversion into a rehabilitation program is a common procedure used for possible
reinstatement.

D. UNAUTHORIZED PRACTICE AND MULTI-JURISDICTIONAL PRACTICE

1. Unauthorized Practice by Lawyer
A lawyer is subject to discipline for practicing in a jurisdiction without being licensed
to do so.

2. Permissible Types of Temporary Multi-Jurisdictional Practice

If a lawyer is admitted to practice in one state, and is not disbarred or suspended
from practice in any state, she may provide legal services in a second state on a
temporary basis in the following situations:

a. Association with Local Lawyer

A lawyer may practice on a temporary basis in a state in which she is not
admitted if she associates with a local lawyer who participates in the matter.

b. Special Permission to Practice in Local Tribunal

If a lawyer wants to handle a matter in a jurisdiction in which she is not admitted,
she may request special permission from that tribunal to appear “pro hac vice”
(i.e., for purposes of that matter only).

c. Mediation or Arbitration Arising Out of Practice in Home State

A lawyer may engage in alternative dispute resolution (e.g., mediation or arbitra-
tion) in a state in which she is not admitted to practice if her services arise out of
her practice in the state in which she is admitted.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW V.

d. Other Practice Arising Out of Practice in Home State

A lawyer may temporarily practice in a state in which she is not admitted if her
out-of-state practice is reasonably related to her home-state practice.

e. Temporary Practice by Foreign Lawyers

A lawyer who is licensed and in good standing in a foreign jurisdiction may
engage in temporary practice in a United States jurisdiction under circum-
stances similar to those described in a. - d., above. Additionally, a foreign lawyer
may provide legal services temporarily in the United States if the services
are governed primarily by international law or the law of a foreign jurisdiction.
However, foreign lawyers are subject to stricter standards than lawyers from
different states (e.g., when seeking pro hac vice admission).

3. Permissible Types of Permanent Multi-Jurisdictional Practice

A lawyer who is admitted in one United States or foreign jurisdiction, and is not
disbarred or suspended from practice in any jurisdiction, may open a law office and
establish a practice in a different jurisdiction only in two limited situations:

a. Lawyers Employed by Their Only Client

A lawyer may practice on behalf of her only client (e.g., in-house corporate
lawyers and government lawyers) in a state in which she is not admitted, but
she must seek pro hac vice admission to litigate a matter in that state. A foreign
lawyer practicing on this basis must consult with a local lawyer before advising
her client on the law of a United States jurisdiction.

b. Legal Services Authorized by Federal or Local Law

Rarely, a lawyer is authorized by federal or local law to practice a restricted
branch of law (e.g., patent prosecution) in a state in which she is otherwise not
admitted to practice.

4. Consequences of Multi-Jurisdictional Practice

A lawyer who is admitted to practice in only one jurisdiction but practices in another
jurisdiction as provided in 2. or 3., above, will be subject to the disciplinary rules of
both jurisdictions.

5. Unauthorized Practice by Nonlawyers

A person not admitted to practice as a lawyer must not engage in the unauthorized
practice of law. A lawyer is subject to discipline for assisting a nonlawyer to engage
in the unauthorized practice of law.

a. “Practice of Law”
“Practice of law” includes those activities: (1) involving legal knowledge and skill,
(2) which constitute advice concerning binding legal rights, or (3) traditionally
performed by lawyers (e.g., settlement negotiations, drafting legal documents).
VI. PROFESSIONAL RESPONSIBILITY MINI REVIEW

It is not unauthorized practice for a nonlawyer to appear before an agency that

permits nonlawyer professionals (e.g., accountants) to do so, or for a nonlawyer
to fill in the blanks on legal forms (e.g., real estate sales contracts). However, the
giving of tax law advice by a nonlawyer would probably constitute the unauthor-
ized practice of law.

b. Consequences of Unauthorized Practice

A nonlawyer engaged in the unauthorized practice of law may be subject
to injunction, contempt, and criminal prosecution. A lawyer who assists a
nonlawyer in the unauthorized practice of law is subject to discipline.

c. Delegating Work to Nonlawyer Assistants

A lawyer must supervise delegated work carefully and must be ultimately
responsible for the results.

d. Training Nonlawyers for Law-Related Work

A lawyer may advise and instruct nonlawyers whose employment requires a
knowledge of the law.

e. Helping Persons Appear Pro Se

A lawyer may advise persons who wish to appear on their own behalf in a legal
matter.

f. Assisting a Suspended or Disbarred Lawyer

A lawyer who assists (e.g., hires) a suspended or disbarred lawyer to do work
that constitutes the practice of law is subject to discipline.

E. RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY

LAWYERS
1. Partners’ Duty to Educate and Guide in Ethics Matters
The partners or managing lawyers of a firm, and other supervisory lawyers, must
make reasonable efforts to assure that the other lawyers adhere to the Rules of
Professional Conduct. A lawyer who directly supervises another lawyer’s work
must reasonably assure that the other lawyer adheres to the Rules of Professional
Conduct.

2. How Duties Are Fulfilled

In a small private law firm, informal supervision may be sufficient. In a larger organi-
zation, more elaborate steps may be necessary.

3. Ethical Responsibility for Another Lawyer’s Misconduct

A lawyer is subject to discipline for a disciplinary violation committed by a second
lawyer if: (1) the first lawyer ordered it or knowingly ratified it, or (2) the first lawyer is
 PROFESSIONAL RESPONSIBILITY MINI REVIEW VII.

a partner or manager or has direct supervisory responsibility over the second lawyer
and learns of the misconduct at a time when it can be remedied but fails to take
reasonable remedial action.

F. RESPONSIBILITIES CONCERNING NONLAWYER ASSISTANCE

1. Duty to Educate and Guide in Ethics Matters
A lawyer should instruct and guide her nonlawyer assistants (within or outside the
firm) concerning legal ethics and should be ultimately responsible for their work.

2. Duty of Partners and Direct Supervisors

Law firm partners and managers and other direct supervisors must make reasonable
efforts to assure that their nonlawyer employees act ethically.

3. Ethical Responsibility for Nonlawyer’s Misconduct

A lawyer is subject to discipline when a nonlawyer does something that would
violate a disciplinary rule if: (1) the lawyer ordered the conduct or knew about it and
ratified it, or (2) the lawyer is a partner or manager or has direct supervisory respon-
sibility over the nonlawyer and learns about the misconduct at a time when it can be
remedied but fails to take reasonable remedial action.

G. RESPONSIBILITIES OF A SUBORDINATE LAWYER

If a supervisory lawyer orders a subordinate lawyer to commit a clear ethics violation,
the subordinate lawyer will be subject to discipline if he carries out the order. A subordi-
nate lawyer will not be subject to discipline, however, for following a supervisory lawyer’s
reasonable resolution of a debatable ethics question.

H. PROFESSIONAL INDEPENDENCE OF A LAWYER

1. Fee Splitting with Nonlawyers
Subject to the exceptions stated below, a lawyer must not share her legal fee with a
nonlawyer.

a. Death Benefits Permitted

The lawyers in a firm may agree that when one of them dies, the others will pay
a death benefit over a reasonable period of time to the dead lawyer’s survivors.

b. Compensation and Retirement Plans for Nonlawyer Employees

The nonlawyer employees of a firm may be included in a compensation or
retirement plan even though the plan is based on a profit-sharing arrangement.

c. Sale of a Law Practice

One lawyer’s practice can be sold to another lawyer (see J., infra). One who
buys the practice of a dead, disabled, or disappeared lawyer may pay the
purchase price to the estate or representatives of the lawyer.
VIII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

d. Sharing Court-Awarded Fee with Nonprofit Organization

When a court awards attorneys’ fees to the winning lawyer in a case, the lawyer
may share the fee with a nonprofit organization that hired or recommended him
as counsel.

2. Partnership with Nonlawyer to Practice Law Prohibited

A lawyer must not form a partnership with a nonlawyer if any part of the partnership
activities will constitute the practice of law.

3. Nonlawyer Involvement in Incorporated Firm or Other Association

A lawyer must not practice in an incorporated firm or association if a nonlawyer owns
any interest in the firm or association, is a director or officer of the firm or association,
or has the right to direct or control the professional judgment of a lawyer.

4. Interference with Lawyer’s Professional Judgment

A lawyer must not allow a person who recommends, employs, or pays her for
serving a client to direct or regulate the lawyer’s professional judgment.

I. RESTRICTIONS ON RIGHT TO PRACTICE PROHIBITED

A lawyer’s right to practice after termination of a partnership or employment relation-
ship cannot be restricted except for an agreement concerning benefits upon retirement.
Likewise, restrictions on the lawyer’s right to practice as part of a settlement agreement
are prohibited.

J. SALE OF A LAW PRACTICE

1. When Sale Permitted
A law practice or a field of law practice, including goodwill, may be sold if: (1) the
seller ceases to engage in the private practice of law or the sold field of practice
in the geographic area in which the practice has been conducted; (2) the entire
practice or field of practice is sold to one or more lawyers or firms; and (3) written
notice is given to the seller’s clients. The seller must exercise competence in finding
a qualified buyer.

2. Protection of Seller’s Clients After Sale

The purchaser must undertake all client matters in the practice and not just those
that generate substantial fees. Also, clients’ fees cannot be increased because of the
sale. The purchaser must honor existing fee agreements made by the seller.

K. LAW-RELATED (ANCILLARY) SERVICES

Lawyers are permitted to provide law-related services (e.g., financial planning,
accounting, lobbying, title insurance) to both clients and nonclients. Even though
law-related services are not legal services, a lawyer who provides such services is
subject to the Rules of Professional Conduct in two situations:
 PROFESSIONAL RESPONSIBILITY MINI REVIEW IX.

1. Nonlegal Services and Legal Services Provided Together

If a lawyer provides nonlegal services in circumstances that are not distinct from her
provision of legal services to clients, then the Rules of Professional Conduct apply to
both the legal and nonlegal services. Additionally, when a client-lawyer relationship
exists between the lawyer and the individual receiving the law-related services, the
lawyer must comply with Rule 1.8(a), which specifies the conditions a lawyer must
satisfy when she enters into a business transaction with her own client. Specifically,
the transaction must meet the following requirements: the terms of the transaction
must be fair to the client; the terms must be fully disclosed to the client in writing,
and such disclosure must cover the essential terms of the transaction and the
lawyer’s role in the transaction; the client must be advised in writing that he should
seek advice from an independent lawyer regarding the arrangement; and the client
must give informed consent in a writing signed by the client. (See also IV.C.2., supra.)

2. Nonlegal Services Provided by Entity that Is Controlled by the Lawyer

If a lawyer provides nonlegal services through an entity that is not her law office but
that she controls, the lawyer must take reasonable steps to assure that people who
receive the nonlegal services understand that those services are not legal services
and that the Rules of Professional Conduct do not cover those services. If the lawyer
does not take those reasonable steps, then the lawyer is subject to the Rules of
Professional Conduct with respect to the nonlegal services.

II. THE CLIENT-LAWYER RELATIONSHIP

A. NATURE OF THE RELATIONSHIP

The relationship between a lawyer and client is contractual, and the terms of such
contract are derived from custom and mutual agreement. A lawyer is both the client’s
fiduciary and agent.

B. CREATING THE LAWYER-CLIENT RELATIONSHIP

A lawyer-client relationship arises when a person indicates an intent that the lawyer
provide legal services and the lawyer agrees or fails to clearly inform the person that he
does not wish to represent her, resulting in implied assent, or when a tribunal appoints a
lawyer to represent a client (see XI.B., infra).

1. Implied Assent and Reasonable Reliance

A lawyer’s assent is implied when he fails to clearly decline representation and the
prospective client reasonably relies on the representation. Reasonableness is a
question of fact.

2. Duty to Reject Certain Cases

A lawyer must refuse employment when:

a. The client’s motive is to embarrass, delay, or burden a third person;

X. PROFESSIONAL RESPONSIBILITY MINI REVIEW

b. The case presents a factually or legally frivolous position (but a good faith
argument that the facts are as claimed or that the law should be changed is
permissible);

c. The lawyer is incompetent (or too busy) to handle the matter;

d. The lawyer’s strong personal feelings may impair his ability of effective repre-
sentation; or

e. The lawyer’s mental or physical condition would materially impair the represen-
tation.

3. Duties Owed to Prospective Client

If no lawyer-client relationship ensues from a consultation with a prospective client,
the lawyer must: (1) protect the person’s confidential information, including declining
representation of others in the same or a related matter; (2) protect the prospective
client’s property; and (3) use reasonable care in giving the person any legal advice,
e.g., whether the claim has merit.

4. Ethical Obligation to Accept Unpopular Cases

A lawyer can fulfill his obligation to assist in the provision of legal services to those in
need by accepting a fair share of unpopular matters or indigent or unpopular clients.

C. ATTORNEYS’ FEES
The nature and amount of an attorney’s fee are subjects for contractual agreement
between the attorney and the client (except when the fee is set by statute or court order).

1. When to Agree on Fee

The ABA Model Rules require a lawyer to reach a clear fee agreement with the
client, preferably in writing, early in the relationship.

2. Discipline for Unreasonable Fee

A court will not enforce a contract for an unreasonably high fee or an unreasonably
high amount for expenses, and the lawyer is subject to discipline for trying to exact
such a fee or expenses.

a. Factors
Factors considered in determining reasonableness include: the time and labor
required; the novelty and difficulty of the questions involved; the skill required;
whether the lawyer is precluded from other work; what other lawyers in the
community charge; the amount at stake and the results obtained; time limita-
tions; the experience, reputation, and ability of the lawyer; and whether the fee
is fixed or contingent.

b. Items that May and May Not Be Billed

The attorney must disclose the basis for charges and may not charge the client for
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XI.

ordinary overhead expenses. The attorney may charge the client the actual cost
of special services (e.g., computer research, secretarial overtime). Alternatively,
the attorney may charge a reasonable amount agreed to in advance.

3. Collecting and Financing Attorneys’ Fees

a. Payment in Advance
A lawyer may require her fee to be paid in advance, but she must refund any
unearned part of the advance if she is fired or withdraws. A lawyer need not
return a true retainer fee (i.e., money paid solely to insure the lawyer’s avail-
ability).

b. Property for Services

A lawyer may accept property in return for services, provided that this does not
involve a proprietary interest in the cause of action or subject of litigation, but
such an arrangement is subject to scrutiny to make sure the lawyer does not
take advantage of the client.

c. Cutting Off Services

A lawyer must not make a fee agreement that could cut off services in the
middle of the relationship and thus put the client at a disadvantage.

d. Credit Arrangements and Security

An attorney may permit the client to pay a fee by credit card, to finance fees
through bank loans, or to pay by an interest-bearing promissory note. If local law
permits, an attorney may use an attorney’s lien to secure payment of a fee.

4. Contingent Fees
United States law tolerates contingent fees, in which the lawyer receives his fee only
upon favorable resolution for his client. Often a contingent fee is a percentage of the
client’s recovery in the case.

a. Generally Prohibited in Criminal and Domestic Relations Cases

A lawyer is subject to discipline for using contingent fees in criminal cases and
in domestic relations cases when the contingency is based on the securing of
a divorce, the amount of alimony or support, or the amount of a property settle-
ment.

b. Contingent Fee Must Be Reasonable

A contingent fee must be reasonable in amount and must not be used if the
facts of the case make it unreasonable to do so.

c. Written Fee Agreement Required

A contingent fee agreement is required to be in a writing signed by the client.
The writing must spell out how the fee is to be calculated, what litigation and
XII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

other expenses are to be deducted from the recovery, whether deductions for
expenses will be made before or after the fee is calculated, and what expenses
the client must pay.

5. Fee Disputes
A lawyer may not use illegal collection methods, improperly use confidential informa-
tion, or harass a client to obtain compensation.

a. Remedies
In addition to filing suit to recover a fee, a lawyer can generally use a common
law or statutory charging lien. Many states also permit the lawyer to exercise a
retaining lien under which she can retain documents, funds, and property of the
client until her fee is paid—but there is a strong minority view contra. Also, if the
lawyer receives funds out of which his fee is to be paid, and the client disputes
the fee, the lawyer must retain the disputed amount in a client trust account
until resolution of the dispute. Moreover, many jurisdictions have arbitration or
mediation services to resolve fee disputes.

6. Fee Splitting with Other Lawyers

Generally, a lawyer must not split fees with another lawyer, except as provided
below.

a. Lawyers Within a Firm

A firm’s partners and associates may pool and split legal fees. A law firm may
also make payments under a separation or retirement agreement to a former
partner or associate.

b. Certain Splits with Lawyers Outside Firm

A lawyer may split her fee with another lawyer who is not in her firm if:

1) The total fee is reasonable;

2) The split is in proportion to the services performed by each lawyer, or

some different proportion if each lawyer assumes joint responsibility for
the matter; and

3) The client agrees to the split in writing.

7. True Referral Fees Are Unethical

When one lawyer simply refers a case to a second lawyer and the first lawyer neither
works on the case nor assumes responsibility for the case, the second lawyer must
not pay the first lawyer a forwarding or referral fee. A lawyer may, however, set
up a reciprocal referral arrangement in which the lawyer agrees to refer clients
to another lawyer or nonlawyer, provided the clients referred are informed of the
arrangement.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XIII.

FEE SHARING

Is the person with whom a fee (or money

comprised of legal fees) is to be shared
Yes another lawyer? No

Is the lawyer the first Is the money a death

lawyer’s partner or benefit payable under
associate? Yes Yes an agreement between
a deceased lawyer and
No his firm or the purchase
price for the sale of a
deceased, disabled, or
Is the lawyer a former disappeared lawyer’s
partner or associate and Yes FEE MAY practice?
the sharing pursuant to a BE SHARED
separation or retirement No
agreement? Yes

No Is the money being paid

into a retirement or
compensation plan for
Have the following firm employees?
conditions been met: (i)
the share is
No
proportional to the
services performed by
the lawyer, or in any
Is the money being
other proportion if each Yes Yes paid to a nonprofit
lawyer assumes joint
organization that hired
responsibility, (ii) the
or recommended the
client consents to the
lawyer?
split in writing, and (iii)
the total fee is
reasonable? No

No FEE MAY NOT BE

SHARED
FEE MAY NOT BE
SHARED

CMR Chart
XIV. PROFESSIONAL RESPONSIBILITY MINI REVIEW

D. SCOPE OF REPRESENTATION
1. May Limit Scope of Representation
A lawyer may limit the scope of the representation if: (1) the limitation is reasonable
under the circumstances, and (2) the client gives informed consent.

2. Must Not Assist Client in Crime or Fraud

A lawyer must not advise or assist a client to commit a crime or fraud, but the lawyer
may discuss the legal consequences of a proposed course of action with the client.
A lawyer may also counsel or assist a client to make a good faith effort to determine
the validity, scope, meaning, or application of the law (e.g., violating a statute to test
its validity in an enforcement proceeding).

3. Decisions to Be Made by Client

A lawyer must abide by a client’s decisions affecting the client’s substantial legal
rights, including:

a. Whether to accept a settlement offer;

b. What plea to enter in a criminal case;

c. Whether to waive a jury trial in a criminal case;

d. Whether the client will testify in a criminal case; and

e. Whether to appeal.

4. Lawyer’s Authority to Bind Client

A lawyer is the client’s agent, and the lawyer’s actions on behalf of a client will
legally bind the client if the lawyer acted with actual or apparent authority. Actual
authority includes what the client has expressly told the lawyer to do, along with
anything else impliedly authorized to carry out the representation. When dealing
with the court and third parties, a lawyer has apparent authority when the court or
third party reasonably assumes that the lawyer has authority to act based on some
manifestation from the client that the lawyer had authority. Often the act of retaining
the lawyer is enough to give the lawyer apparent authority, except with respect to
settlement and other decisions that are always left to the client (see 3., above). Even
if the lawyer acted without actual authority, the client is still bound if the lawyer had
apparent authority. However, the client can sue the lawyer for damages.

a. When Lawyer’s Authority Ends

A lawyer’s actual authority ends when the matter is over, the lawyer is fired, the
lawyer dies or is unable to continue the representation, or the client dies. The
lawyer’s apparent authority ends when the third party knows or should know
that any of these events occurred. When a lawyer’s actual authority ends, the
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XV.

lawyer must no longer purport to have authority and must notify third parties
who are relying on the continued existence of the authority.

5. Client with Diminished Capacity

a. Lawyer’s Duties
If a client is a minor or has diminished mental capacity, the lawyer has a duty, so
far as reasonably possible, to maintain a normal lawyer-client relationship with
the client. Even if the client has a guardian or other representative, the lawyer
should, so far as possible, treat the client as a client, particularly in communi-
cating with the client about significant developments.

b. Protective Action and Appointment of Guardian

When the client has diminished capacity and faces a risk of substantial physical,
financial, or other harm, the lawyer may take reasonable actions to protect the
client, including seeking the appointment of a guardian. Under these circum-
stances, the lawyer has implied authority to reveal the client’s confidential infor-
mation, to the extent necessary to protect the client.

6. Emergency Legal Assistance to Nonclient with Seriously Diminished Capacity

When a person with seriously diminished capacity facing imminent and irreparable
harm to her health, safety, or financial interest consults a lawyer, that lawyer may
take legal action on behalf of the person even if a lawyer-client relationship has not
been established if the lawyer reasonably believes the person has no other repre-
sentative. Any action taken should be limited to that necessary to maintain the status
quo or to avoid the harm.

a. Lawyer’s Duties
A lawyer has the same duties to an “emergency” nonclient as he would with
respect to a client. Normally, the lawyer would not seek compensation for
emergency actions taken on behalf of the nonclient.

E. COMMUNICATING WITH THE CLIENT

A lawyer must: (1) promptly inform the client of any decision that requires the client’s
informed consent, (2) keep the client reasonably informed about the status of the matter
and the means to be used to accomplish the client’s objectives, (3) respond promptly
when a client makes a reasonable request for information, and (4) consult with the client if
the client expects the lawyer to do something illegal or unethical.

1. Special Circumstances
The amount and kind of information the lawyer should give to the client depend on
the client’s situation; e.g., a client with diminished capacity may require extra expla-
nation and assistance. If a lawyer regularly represents a client, the two may work out
a convenient arrangement for occasional reporting of routine developments.
XVI. PROFESSIONAL RESPONSIBILITY MINI REVIEW

2. Withholding Information from Client

A lawyer may delay the transmission of information to a client if the client would be
likely to react imprudently to an immediate communication. Moreover, if a court rule or
order forbids a lawyer from sharing information with a client, the lawyer must comply.

F. CONTRACTS CONCERNING CLIENT-LAWYER RELATIONSHIP

Any contract concerning the client-lawyer relationship (e.g., as to fees, the nature of the
services, etc.) is generally enforceable by either party if it is otherwise lawful. However,
the client may avoid the contract (including a modification to an existing contract) in the
following circumstances: (1) the contract was made some time after the representation
began, unless the lawyer shows that the contract and circumstances of its formation
were fair and reasonable to the client; or (2) the contract was made after the lawyer’s
work was completed, and the client was not informed of facts needed to evaluate the
appropriateness of the lawyer’s compensation or other benefits conferred on the lawyer
by the contract.

G. TERMINATING THE LAWYER-CLIENT RELATIONSHIP

The lawyer-client relationship normally continues until the end of the matter, but it can
terminate prematurely in three ways: (1) the client can fire the lawyer; (2) in some situa-
tions, the lawyer must withdraw; and (3) in some situations, the lawyer may withdraw.

1. Client Fires Attorney

The client can fire the attorney at any time, with or without cause. The client is then
liable to the attorney in quantum meruit for the reasonable value of the work done. If
the attorney and client had a contract for a flat fee or maximum fee, the attorney cannot
recover more than the amount contracted for. If the attorney and client had a contingent
fee agreement, the attorney’s quantum meruit claim does not arise until the contin-
gency comes to pass (typically until the client gets a favorable judgment or settlement).

2. Court Permission to Substitute Attorneys

In a litigation matter, local court rules typically require court permission for a client
to fire her attorney, and the court may deny permission if a substitution of attorneys
would cause undue delay or disruption. For the same reasons, the court may deny
an attorney’s request to withdraw, even if there is good cause for withdrawal.

3. Mandatory Withdrawal
An attorney must withdraw from representation in two situations: (1) the attorney’s
mental or physical condition would make it unreasonable for him to continue repre-
senting the client; or (2) continued representation would require the attorney to
violate a law or disciplinary rule.

4. Permissive Withdrawal
An attorney may withdraw from representation for any reason if withdrawal does
not have a material adverse effect on the client’s interest or the client consents. An
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XVII.

attorney may withdraw despite an adverse impact when the circumstances are so
severe as to justify harm to the client’s interests and:

a. The client persists in criminal or fraudulent conduct (if the conduct requires the
attorney’s assistance, the attorney must withdraw).

b. The client has used the attorney’s services to commit a past crime or fraud.

c. The client’s objective is repugnant or against the lawyer’s beliefs.

d. The client breaks his promise to the attorney.

e. The representation imposes an unreasonable financial burden on the attorney.

f. The client will not cooperate in the representation.

g. Other good cause for withdrawal exists.

5. Attorney’s Duties Upon Termination of Representation

Before withdrawing, an attorney must give the client reasonable notice of his
withdrawal and a chance to get another attorney. When an attorney withdraws or is
fired, the attorney must refund any advance on fees not yet earned and expenses not
yet spent, and must turn over all papers and property to which the client is entitled.

III. CLIENT CONFIDENTIALITY

As a general rule, a lawyer must not reveal any information relating to the representation
of a client. A lawyer may, however, reveal such information if the client gives informed
consent or any of the other exceptions discussed in C., infra, applies.

A. RELATIONSHIP BETWEEN ETHICAL DUTY AND ATTORNEY-CLIENT

PRIVILEGE
1. Compulsion vs. Gossip
The attorney-client privilege is an exclusionary rule of evidence law that prevents
the government from compelling the revelation of privileged communications. In
contrast, the ethical duty of confidentiality prevents the attorney from voluntarily
disclosing or misusing confidential information, and it applies in every context
where the attorney-client privilege does not apply. The ethical duty also requires the
attorney to make reasonable efforts to protect a client’s confidential information from
inadvertent or unauthorized disclosure by the lawyer and those under the lawyer’s
supervision, and from unauthorized access by third parties.

2. Kinds of Information Covered

The attorney-client privilege protects only confidential communications between an
XVIII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

attorney and client or their respective agents. In contrast, the ethical duty covers
communications that are protected by the privilege plus any other information the
attorney obtains relating to the representation, no matter what the source.

3. Disclosure vs. Use

The attorney-client privilege prevents the government from compelling the disclo-
sure of privileged communications. In contrast, the ethical duty of confidentiality
prohibits the lawyer from either disclosing confidential information without the
client’s informed consent or using confidential information to the disadvantage of
a client, former client, or prospective client without the affected client’s informed
consent.

B. SUMMARY OF ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege prohibits a court or other governmental tribunal from
compelling disclosure of confidential communications between an attorney and a client,
or their respective agents, if the communication concerns the professional relationship.

1. Client
A “client” is a person or entity that seeks legal services from an attorney. The privi-
lege covers preliminary communications leading up to an attorney-client relationship,
even if no such relationship ultimately develops.

a. Corporate Clients
When the client is a corporation, the privilege covers communications between
the lawyer and a high-ranking corporate official. It also covers communica-
tions between the lawyer and another corporate employee if three conditions
are met: (1) the employee communicates with the lawyer at the direction of the
employee’s supervisor; (2) the employee knows that the purpose of the commu-
nication is to obtain legal advice for the corporation; and (3) the communica-
tion concerns a subject within the scope of the employee’s duties to act for the
corporation.

2. Attorney
An “attorney” means a person who is authorized (or whom the client reasonably
believes to be authorized) to practice law in any state or nation.

3. Communication
“Communication” means information transmitted orally or in writing in either direc-
tion between the attorney and the client or their respective agents.

a. Mechanics of Relationship
The privilege generally does not cover the client’s identity or the fee arrange-
ment between the client and attorney, unless disclosing those facts is tanta-
mount to disclosing a privileged communication.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XIX.

b. Preexisting Documents and Things

A preexisting document or thing does not become privileged simply by turning it
over to an attorney; if it would be discoverable in the client’s hands, it is equally
discoverable in the attorney’s hands. If an attorney comes into possession of
the fruits of a crime, or an instrument used to commit a crime, the attorney may
keep it long enough to obtain information needed to represent the client, but
the attorney must then turn it over to the proper authorities.

4. “Confidential” Defined
To be a protected “confidential” communication, the communication must have
been made by a means not intended to disclose the communicated information
to outsiders. Confidentiality is not destroyed by the presence of a third party who
is present to aid the attorney-client relationship, and an eavesdropper can be
prevented from testifying about a privileged communication. However, the presence
of a third party who is not present to further the attorney-client relationship destroys
the privilege.

5. Client Holds Privilege

The client (not the attorney) is the one who can claim or waive the privilege. Waiver
will occur when there is a failure to claim the privilege when there is a chance to do
so or when there is an intentional revelation of a significant part of the privileged
communication. A client may also waive the privilege by putting the legal services
at issue in the case. If the client has not waived the privilege, and if someone tries to
obtain privileged information when the client is not present, the attorney must claim
the privilege on the client’s behalf.

6. Duration of Privilege
The attorney-client privilege continues indefinitely, surviving termination of the
relationship and even the death of the client.

7. Exceptions to Privilege
The privilege does not apply in situations where:

a. The client seeks the attorney’s services to engage in or assist a future crime or
fraud.

b. The communication is relevant to an issue of breach of the duties arising out of

the attorney-client relationship.

c. Civil litigation arises between two persons who were formerly joint clients of
the attorney.

d. The attorney is asked for evidence about the competency or intent of a client
who has attempted to dispose of property by will or inter vivos transfer.
XX. PROFESSIONAL RESPONSIBILITY MINI REVIEW

INFORMATION RELATING TO REPRESENTATION:

SCOPE OF PROTECTION

Information necessary to prevent reasonably Client communications revealing intent to

certain death or substantial bodily harm commit future crime or fraud reasonably
certain to result in substantial financial
Information relevant to a dispute involving harm if lawyer’s services used (or to prevent
the attorney’s conduct (e.g., fee dispute, or mitigate financial harm if client has already
malpractice case, misconduct charges) acted)

DUTY OF CONFIDENTIALITY
All information relating to representation of client protected
from voluntary disclosure and from use harmful to client

Communications between attorney

and client with third party present

ATTORNEY-CLIENT PRIVILEGE
Communications Relevant preexisting
made when client Confidential comnications protected documents and
seeks attorney’s against compelled testimony things
services in future Conversations Letters and other
crime or fraud between attorney documents
and client between attorney
and client

Information concerning past frauds Mechanical details of attorney-client

involving attorney’s services relationship (e.g., fee arrangement,
client identity)

Information for which disclosure expressly Information necessary to detect

or impliedly authorized by client or resolve conflicts of interest

Information required to be disclosed Information necessary for the lawyer

by law or court order to obtain legal ethics advice

CMR Chart
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXI.

8. Related Doctrine of Work Product Immunity

Generally, material prepared by a lawyer for litigation or in anticipation thereof is
immune from discovery or other disclosure unless the opposition shows a substantial
need for, and an inability to gather, the material without undue hardship. A lawyer’s
mental impressions or opinions are always immune from discovery unless immunity
is waived.

C. ETHICAL DUTY OF CONFIDENTIALITY AND ITS EXCEPTIONS

The ethical duty of confidentiality applies in every context in which the attorney-client
privilege does not apply, and the ethical duty covers a broader range of information. The
exceptions to the ethical duty are as follows:

1. Client’s Informed Consent and Implied Authority

The attorney may disclose or use confidential information if the client gives informed
consent or the attorney has implied authority from the client.

2. Dispute Concerning Attorney’s Conduct

The attorney may reveal confidential information to the extent necessary to protect
herself against a claim of malpractice, disciplinary violation, complicity with the client
in illegal acts, or the like.

3. Disclosure to Obtain Legal Ethics Advice

A lawyer may disclose enough of the client’s confidential information as is necessary
to obtain legal ethics advice for the lawyer.

4. Disclosure Required by Law or Court Order

A lawyer may reveal her client’s confidential information to the extent that she is
required to do so by law or court order.

5. Disclosure to Prevent Death or Substantial Bodily Harm

A lawyer may reveal her client’s confidential information to the extent that the lawyer
reasonably believes necessary to prevent reasonably certain death or substantial
bodily harm.

6. Disclosure to Prevent or Mitigate Substantial Financial Harm

A lawyer may reveal the client’s confidential information to the extent necessary
to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial financial harm to someone, if the client is using or has used the
lawyer’s services in the matter. The same is true if the client has already acted and
the lawyer’s disclosure can prevent or mitigate the consequent financial harm.

7. Disclosure to Detect and Resolve Conflicts of Interest

A lawyer may disclose limited client information (e.g., names, brief summary of
issues involved in a matter) to detect or resolve conflicts of interest when the
lawyer changes firms, when two law firms merge, or when a law practice is being
XXII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

purchased. However, the following conditions apply: (1) the disclosure may be made
only after substantive discussions regarding the new relationship have occurred;
(2) the disclosure must be limited to the minimum necessary to detect any conflicts
of interest; (3) the disclosed information must not compromise the attorney-client
privilege or otherwise prejudice the clients; and (4) the disclosed information may be
used only to the extent necessary to detect and resolve any conflicts of interest.

Note: The above exceptions give the lawyer discretion to disclose the confidential
information; they do not require disclosure.

IV. CONFLICTS OF INTEREST

A. CONFLICTS OF INTEREST—THE GENERAL RULES

A lawyer must not allow her personal interests, the interests of another client, or the inter-
ests of a third person to interfere with her loyalty to the client.

1. Consequences of a Conflict of Interest

If a conflict of interest is apparent before a lawyer takes on a client’s matter, the
lawyer must not take it on (unless the conflict can be solved with consent). If a
conflict becomes apparent after the lawyer has taken on the client’s matter, the
lawyer must withdraw (unless the conflict can be solved with consent). A lawyer’s
failure to handle a conflict properly can result in: (1) disqualification as counsel in a
litigated matter, (2) professional discipline, and (3) civil liability for legal malpractice.

2. Imputed Conflicts of Interest

Generally, lawyers who practice together in a “firm” are treated as a single unit for
conflict of interest purposes—i.e., when one lawyer cannot handle a matter because
of a conflict, the conflict is said to be “imputed” from the first lawyer to the other
lawyers in the “firm.” Whether a group of lawyers constitutes a “firm” depends on
many factors, including whether: (1) they have a formal agreement, (2) they hold
themselves out as if they practice as a firm, (3) they share their revenues and respon-
sibilities, (4) they have physical access to each other’s client files, (5) they routinely
talk among themselves about the matters they are handling, and (6) the purpose of
the particular conflict rule would be served by imputing one lawyer’s conflict to other
lawyers in the group.

a. Exceptions to Imputed Disqualification

A conflict will generally not be imputed to other lawyers in the firm: (1) where the
conflict is personal to the disqualified lawyer (e.g., a family or romantic relation-
ship) and does not present a significant risk of materially limiting the representa-
tion of the client by the remaining lawyers in the firm; or (2) in certain situations
where the conflict involves the disqualified lawyer’s former employment or
consultations, and the disqualified lawyer is timely screened from participation
in the matter and is apportioned no part of the fee from the matter.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXIII.

B. CONFLICTS OF INTEREST—CURRENT CLIENTS

1. Concurrent Conflicts of Interest
A lawyer must not represent a client if: (1) the representation of one client will be
directly adverse to another client; or (2) there is a significant risk that the represen-
tation of one client will be materially limited by the lawyer’s own interest or by the
lawyer’s responsibilities to another client, a former client, or a third person.

2. Informed Consent Can Solve Some Conflicts

Despite a concurrent conflict of interest, a lawyer may represent a client if: (1) the
lawyer reasonably believes that he can competently and diligently represent each
affected client; (2) the representation is not prohibited by law; (3) the representation
does not involve the assertion of a claim by one client against another client repre-
sented by the lawyer in the same litigation (or other proceeding before a tribunal);
and (4) each affected client gives informed consent, confirmed in writing.

a. “Informed” Consent
“Informed” consent means that each affected client must understand how the
conflict can harm him.

b. Revocation of Consent
The client can almost always revoke a previously given consent to a conflict of
interest.

3. Specific Conflict Situations Concerning “Direct Adversity”

Examples of direct adversity include: (1) representing a client in a matter against
another client that the lawyer represents in different matters; or (2) vigorously cross-
examining a client in the course of representing another client.

a. Unnamed Members of a Class Do Not Count as Clients

In class action litigation, the unnamed members of a class ordinarily are not
regarded as clients for purposes of this conflicts rule.

4. Specific Conflict Situations Concerning “Material Limitation”

As noted above, a lawyer must not represent a client if the representation of that
client may be materially limited by the lawyer’s own interests or by the lawyer’s
responsibilities to another client, a former client, or a third person, unless each
affected client gives informed consent, confirmed in writing. The discussion in a.
through e., below, provides specific illustrations of this rule.

a. Representing Multiple Parties in the Same Matter

1) Representing Co-Parties in Criminal Litigation

Because the interests of criminal co-defendants are likely to diverge, a
lawyer ordinarily should not try to defend two people in a criminal case.
XXIV. PROFESSIONAL RESPONSIBILITY MINI REVIEW

LAWYER’S REPRESENTATION OF CURRENT

CLIENTS WITH CONFLICTING INTERESTS

Are the clients opposing

one another in the
action (e.g., is one client
suing another)? Yes

No

Are the clients co-parties Would a disinterested

(on the same side) in lawyer conclude that the Yes
Yes
the action but with client should not agree
conflicting interests to the representation?
(e.g., they have
inconsistent stories)?
No
No

Does the representation Does the lawyer LAWYER MAY NOT

require the lawyer to reasonably believe UNDERTAKE THE
represent a client in that the representation REPRESENTATION
one case and oppose Yes will not affect his
that same client in a relationship with the
simultaneously No
other client?
pending case?
Yes
No

Has each client given

Does the representation informed consent, No
require the lawyer to confirmed in writing, to
take inconsistent legal the representation?
positions (e.g., argue on
behalf of Client 1 that Yes
Yes
law is unconstitutional
and argue in separate
case on behalf of Client LAWYER MAY
2 that the same law is No UNDERTAKE THE
constitutional)? REPRESENTATION

CMR Chart
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXV.

2) Representing Multiple Parties in Civil Matters

In civil litigation, one lawyer may represent co-plaintiffs or co-defendants
whose interests are potentially in conflict. A lawyer also may represent
multiple parties in a nonlitigation matter. However, the conflict must be
addressed in accordance with 3), below.

a) Confidentiality and Privilege Problems

In litigation between two former joint clients of a single lawyer, neither
client can claim the attorney-client privilege; therefore, before under-
taking multiple representation, the lawyer should explain that whatever
one client discloses will be shared with the other client.

3) Handling Multiple Representation Conflicts

In both litigation and nonlitigation matters, the lawyer should: (1) analyze the
facts and determine whether she can effectively represent each client; (2)
disclose the potential conflict to each client, including the disadvantages of
sharing a lawyer; (3) obtain the clients’ informed consent, confirmed in writing;
and (4) repeat these steps if the actual conflict ripens into an actual conflict.

b. Representing Two Clients with Inconsistent Legal Positions in Two

Unrelated Cases
Absent informed consent, confirmed in writing, from both clients, a lawyer must
not represent two clients in separate, unrelated matters when they have incon-
sistent legal positions if there is a substantial risk that the representation of one
client will be materially limited by the lawyer’s responsibilities to the other client.

c. Conflicts Caused by Lawyer’s Own Interests

If a lawyer’s own interests are likely to materially limit his ability to represent a
client effectively, he must not take on the matter unless he obtains the client’s
informed consent, confirmed in writing. A conflict of interest may be created
by a lawyer’s own financial interest or by his personal relationship with another
lawyer or client (e.g., when opposing counsel is the lawyer’s immediate relative).

d. Conflicts Between Client’s Interest and Third Person’s Interest

When the interest of a third person creates a substantial risk of materially
limiting the lawyer’s ability to represent the client effectively, the lawyer may
represent the client if: (1) the lawyer reasonably believes that the third person’s
interest will not adversely affect the representation; and (2) the client gives
informed consent, confirmed in writing.

e. Conflicts Raised by Liability Insurance

Liability insurance policies commonly provide that the insurance company will
select and pay for a lawyer to defend the policyholder in suits arising out of
events covered by the policy. The policyholder, in turn, promises to cooperate
XXVI. PROFESSIONAL RESPONSIBILITY MINI REVIEW

with the defense. Generally, the policyholder wants a claim handled in a way
that minimizes his risk of paying money out of his own pocket. The insurance
company, however, generally wants to minimize what it must pay. The question
then becomes whom does the lawyer represent? The law on this question
varies from state to state. No matter whom the defense lawyer represents, the
lawyer’s ethical obligations are governed by the Rules of Professional Conduct,
not by the insurance contract.

C. CONFLICTS OF INTEREST—SPECIFIC RULES FOR CURRENT CLIENTS

1. Misuse of Client’s Confidential Information
A lawyer must not use a client’s confidential information to the client’s disadvantage
or to benefit the lawyer or someone else, unless the client gives informed consent or
some other exception to the duty of confidentiality applies. The same rule applies to
misuse of a former client’s or a prospective client’s confidential information. A lawyer
who uses the confidential information for his own pecuniary gain (other than in the
practice of law) may be subject to civil liability—i.e., he may have to account to the
client, former client, or prospective client for his profits.

2. Business Transactions with Client and Money or Property Interests Adverse to

Client
A lawyer must not enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security, or money interest that is adverse to a
client unless all of the following conditions are satisfied:

a. The terms of the business transaction (or the terms on which the interest is
acquired) are fair to the client;

b. The terms are fully disclosed to the client in writing, expressed in a manner that
the client can reasonably understand;

c. The client is advised in writing that he should get the advice of an independent
lawyer about the arrangement before entering into it; and

d. The client gives informed consent, in a writing that the client signs.

This rule does not apply to an ordinary fee agreement between the lawyer and client
or to standard commercial transactions in which the lawyer buys goods or services
that the client routinely markets to the public.

3. Proprietary Interest in Subject of Litigation

A lawyer must not acquire a proprietary interest in the client’s cause of action or the
subject matter of the litigation. Contingent fees and attorney’s liens are exceptions
to this rule, even though each gives the lawyer a type of interest in the subject of the
litigation.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXVII.

4. Gifts to Lawyer from Client Who Is Not a Relative

a. Soliciting Substantial Gift

A lawyer is prohibited from soliciting a substantial gift from a client who is not
the lawyer’s relative. A lawyer may, however, accept a small gift from a client,
such as a token of appreciation or an appropriate holiday gift. A lawyer also
may accept a substantial gift from a client, although the gift may be voidable for
undue influence.

b. Preparing Legal Instrument that Creates Substantial Gift

A lawyer must not prepare a legal instrument in which the client gives the
lawyer or his relatives a substantial gift, except when the client is a relative.

c. Lucrative Appointments
A lawyer is not prohibited from seeking to have himself or his law partner or
associate named as executor of an estate or counsel to the executor or to some
other fee-paying position. However, the general conflict of interest principles do
prohibit such efforts if the lawyer’s advice is tainted by the lawyer’s self-interest.

5. Acquiring Literary or Media Rights Concerning a Client’s Case

A lawyer must not acquire literary or media rights to a story based in substantial part
on the lawyer’s representation of a client. However, a lawyer may acquire such rights
after the client’s legal matter is entirely completed, including appeals.

6. Financial Assistance to Client in Litigation

Except as permitted below, a lawyer must not give any financial help to a client in the
context of pending or contemplated litigation.

a. Advancing Litigation Expenses

A lawyer may advance court costs and other litigation expenses on the client’s
behalf, and repayment may be contingent on the outcome of the case.

b. Paying Costs and Expenses for Indigent Client

A lawyer may pay the court costs and litigation expenses for an indigent client,
without any provision for repayment.

c. Modest Gifts When Representing Indigent Client Pro Bono

A lawyer representing an indigent client pro bono may provide modest gifts
to the client for food, rent, transportation, medicine, and other basic living
expenses. However, the lawyer must not: (1) promise or imply the availability of
such gifts prior to retention, or as an inducement to continue the client-lawyer
relationship after retention; (2) seek or accept reimbursement from the client
or anyone affiliated with the client; or (3) publicize or advertise a willingness to
provide such gifts to prospective clients.
XXVIII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

7. Aggregate Settlement Agreements

A lawyer who represents several co-parties in a matter must not participate in the
making of an aggregate settlement agreement unless: (1) the clients come to an
agreement about how the aggregate sum will be shared; (2) the lawyer discloses
to each client all terms of the sharing agreement including the total amount that
will be paid, the existence and nature of all claims, defenses, and pleas involved in
the settlement, the details of every other client’s participation in the settlement, and
how and by whom the lawyer’s fees will be paid; and (3) each client gives informed
consent in a signed writing. Note that the extensive disclosures required by (2)
above may require the lawyer to share one client’s confidential information with the
others. Thus, the lawyer should get informed consent to do so from each client at the
outset of the matter.

a. Class Action Settlements

In a class action, the lawyer who represents the class ordinarily does not have
a complete lawyer-client relationship with the unnamed members of the class.
Even so, at settlement time, the class’s lawyer must follow all of the class action
rules concerning notice and other procedural requirements that protect the
unnamed class members.

b. Aggregate Settlement of Criminal Case

The same rules that apply to an aggregate settlement in a civil case also apply
to a joint plea bargain in a criminal case.

8. Compensation from Third Person

A lawyer must not accept compensation from a third person for representing a client
unless: (1) the client gives informed consent, (2) the third person does not interfere
with the lawyer’s judgment in representing the client, and (3) the arrangement does
not compromise the client’s confidential information.

9. Sexual Relationship Between Lawyer and Client

A lawyer who has sexual relations with a client is subject to discipline, whether or not
the client consents and whether or not the client is harmed—unless their consen-
sual sexual relationship predated the lawyer-client relationship. When the client is
an organization, this rule applies to any person who supervises, directs, or regularly
consults with the lawyer concerning the organization's legal matters.

a. No Imputation
The other specific conflicts discussed in 1. - 8., above, are imputed to other
lawyers in the disqualified lawyer’s firm. However, a conflict created by a sexual
relationship is personal in nature and is not imputed to the lawyer’s colleagues.

b. Pre-Existing Relationship May Still Cause Conflict

Even where the sexual relationship predated the lawyer-client relationship, the
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXIX.

sexual relationship might “materially limit” the lawyer-client relationship and

implicate the general conflict of interest rule for current clients (see B., supra).

D. DUTIES TO FORMER CLIENTS

1. Continuing Duty of Confidentiality
An attorney has a continuing duty to preserve information gained in confidence
during the representation, even after the representation ends.

2. Using Confidential Information to Former Client’s Disadvantage

A lawyer must not use confidential information to a former client’s disadvantage
without informed consent, confirmed in writing, from the former client. This rule is
inapplicable to generally known information or information the lawyer would be
permitted to reveal under an exception to the duty of confidentiality.

3. Opposing Former Client in Substantially Related Matter

Absent informed consent, confirmed in writing, from the former client, a lawyer must
not represent a client whose interests are materially adverse to those of the former
client in a matter that is “substantially related” to a matter in which the lawyer repre-
sented the former client. Matters are substantially related if: (1) they involve the same
transaction or legal dispute, or (2) there otherwise is a substantial risk that confiden-
tial factual information as would normally have been obtained in the prior represen-
tation would materially advance the new client’s position.

4. Clients of Former Firm

A lawyer whose firm formerly represented a client in a matter and who acquired
protected confidential information [Rule 1.6] or information pertaining to the repre-
sentation [Rule 1.9(c)] may not thereafter represent another person in the same or a
substantially related matter if that person’s interests are materially adverse to those of
the former client, unless the former client gives informed consent, confirmed in writing.

5. Disqualification of Lawyer’s New Firm

If a lawyer is disqualified from representing a client under the rules set out in 3. - 4.,
above, and the lawyer joins a new firm, the new firm may be disqualified as well
unless (1) the lawyer is properly screened (i.e., does not work on the case, discuss
it with those who do, or have access to case files) and does not share fees from the
matter, and (2) the former client is given notice.

6. Disqualification of Lawyer’s Former Firm

A lawyer’s former firm is prohibited from representing a person with interests materi-
ally adverse to those of a client of the formerly associated lawyer if: (1) the matter
is the same or substantially related to that in which the formerly associated lawyer
represented the client; and (2) any lawyer remaining in the firm has information
protected by Rules 1.6 or 1.9(c).
XXX. PROFESSIONAL RESPONSIBILITY MINI REVIEW

E. CONFLICTS INVOLVING PROSPECTIVE CLIENTS

1. Lawyer’s Duty Concerning Confidential Information
The attorney-client privilege protects confidential communications between a lawyer
and a prospective client. The ethical duty of confidentiality also applies to consulta-
tions between a lawyer and prospective client. Thus, the lawyer must not reveal or
use information learned during those consultations, unless an exception to the duty
of confidentiality applies.

2. Lawyer’s Duty Concerning Conflict of Interest

A lawyer who obtains confidential information during a consultation with a prospec-
tive client must not later represent a different person in the same or a substantially
related matter if the confidential information could significantly harm the prospective
client. This conflict is imputed to others in the lawyer’s firm.

3. How to Overcome a Prospective Client Conflict

One way to overcome a prospective client conflict is to obtain informed consent,
confirmed in writing, from the affected client and the prospective client. A second
way to overcome the conflict is to satisfy all of the following conditions:

a. Demonstrate that the lawyer took care to avoid exposure to any more confi-
dential information than was necessary to determine whether to represent the
prospective client;

b. Demonstrate that the disqualified lawyer is timely screened from any participa-
tion in the matter and will not share the fee; and

c. Give written notice to the prospective client.

F. CONFLICT RULES FOR CURRENT AND FORMER GOVERNMENT OFFICERS

AND EMPLOYEES
The government has a right to expect that its confidential information will not be abused
by a lawyer who switches from government to private practice. On the other hand, the
government needs good lawyers, and a rigid rule of disqualification would discourage
some lawyers from entering government service. Thus, the ABA adopted disqualification
rules (see below) that are narrow and flexible.

1. Federal and State Conflict of Interest Laws

Lawyers who move between government and private jobs must comply not only
with the legal ethics rules, but also with various state and federal conflict of interest
statutes and regulations.

2. Private Work Following Government Work on Same Matter

A lawyer who leaves government service and enters private practice must not
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXXI.

represent a private client in a matter in which the lawyer participated personally

and substantially while in government service, unless the government agency gives
informed consent, confirmed in writing. “Matter” means a specific dispute involving
specific facts and parties. “Personally and substantially” means that the lawyer
worked on the matter herself and that her work was more than trifling.

a. Imputed Disqualification
If a lawyer is disqualified by the above rule, the other lawyers in her firm are also
disqualified unless:

1) The former government lawyer is timely screened off from the case;

2) The former government lawyer is not apportioned a part of the fee earned
in the case; and

3) Written notice is given to the government agency to enable it to make sure

that the above conditions are met.

3. Subsequent Use of Information Gained During Government Service

A government lawyer who receives confidential government information about a
person must not later represent a private client whose interests are adverse to that
person, when the information could be used to harm that person.

a. Imputed Disqualification
If a former government lawyer is disqualified by this rule, then the other lawyers
in her firm are also disqualified unless the former government lawyer is timely
screened off from the case and is not apportioned any part of the fee earned in
the case.

4. Current Government Service After Private Practice

a. Ordinary Conflict Rules Apply

The ordinary conflict rules regarding current and former clients apply to a
lawyer who enters government service after private practice (or other nongov-
ernmental work). (See IV.B., D., supra.)

b. “Personal and Substantial” Rule Also Applies

If a lawyer worked “personally and substantially” on a “matter” in private
practice (or other nongovernmental employment), the lawyer must not work on
that same matter when she later enters government service, whether or not
the later work would be adverse to a former client. However, informed consent,
confirmed in writing, can solve the conflict.

c. Negotiating for Private Employment

When a person in government service is currently working personally and
XXXII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

substantially on a matter, she must not negotiate for private employment with
any party or lawyer who is involved in that matter. There is an exception to this
rule for law clerks (see G.3., below).

G. CONFLICTS INVOLVING FORMER JUDGES, ARBITRATORS, AND THE LIKE

1. Switching from Judicial Service to Private Law Practice
The conflict issues and the ethics rules about switching from judicial service to
private practice are similar to those described above. The general rule is that a
lawyer must not represent a private client in a matter in which the lawyer previ-
ously participated personally and substantially while serving as a judge or other
adjudicative officer (or as a law clerk to such person) or as an arbitrator, mediator, or
other third-party neutral, unless all parties to the proceeding give informed consent,
confirmed in writing.

2. Screening Can Avoid Imputed Disqualification

If a lawyer is disqualified under this rule, the other lawyers in her firm are also
disqualified unless the following conditions are met: (1) the lawyer is timely screened
off from the matter; (2) the lawyer is not apportioned any part of the fee earned in
the matter; and (3) written notice is given to the parties and the appropriate tribunal
so that they can ensure that the above conditions are met.

3. Law Clerks Negotiating for Private Employment

A law clerk to a judicial officer must notify the officer before negotiating for private
employment with a party (or the attorney for a party) in a matter in which the law
clerk is participating personally and substantially.

4. Other Adjudicative Officers Negotiating for Private Employment

The lenient rule that applies to law clerks does not apply to judges, arbitrators,
mediators, third-party neutrals, or other adjudicative officers. They are forbidden to
negotiate for private employment with a party (or attorney for a party) in a matter in
which they are participating personally and substantially.

V. COMPETENCE, MALPRACTICE, AND OTHER CIVIL LIABILITY

A. COMPETENCE
In representing a client, a lawyer must act competently and with the legal knowledge,
skill, thoroughness, and preparation that are reasonably necessary for the representation.

1. Legal Knowledge and Skill

In determining whether a lawyer has the necessary skill to handle a matter, factors
to be considered include the complexity and specialized nature of the matter;
the lawyer’s general experience and his training and experience in the field in
question; the amount of preparation and study the lawyer will give to the matter;
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXXIII.

and whether it is possible for the lawyer to refer the matter to, or consult with,
another competent lawyer.

a. Becoming Competent Through Preparation

A lawyer may accept representation if the requisite competence can be
achieved by reasonable preparation.

b. Emergency Situations
A lawyer who is not competent in the field may assist a client in an emergency,
but the assistance should not exceed what is reasonably necessary to meet the
emergency.

2. Thoroughness and Preparation

A lawyer must inquire into and analyze the facts and legal elements in order to
adequately prepare a matter.

3. Retaining Other Lawyers to Assist in the Matter

Sometimes a lawyer may gain competence in a matter by consulting with other
lawyers. Before a lawyer retains or contracts with lawyers outside her firm to assist in
the provision of legal services to the client, the lawyer: (1) must reasonably believe that
the services of the outside lawyers will contribute to the competent and ethical repre-
sentation of the client, and (2) “should ordinarily” obtain the client’s informed consent.

4. Maintaining Competence—Technology and Continuing Legal Education

Lawyers should keep abreast of changes in the law or its practice, including the
benefits and risks associated with relevant technology. Moreover, a lawyer must
comply with all applicable continuing legal education requirements.

B. DILIGENCE
Once a lawyer takes on a client’s matter, the lawyer must:

1. Act on the client’s behalf with reasonable diligence and promptness;

2. Act with dedication and zeal, taking whatever lawful and ethical steps are available
to vindicate the client’s cause;

3. Pursue the matter to completion (unless the lawyer is fired, or is required or

permitted to withdraw); and

4. Either terminate the relationship or act with the required diligence if there is any
doubt as to whether a lawyer-client relationship exists.

In addition to the above, a solo practitioner has a duty to plan for his untimely death or
disability by designating another competent lawyer to review the clients’ files and deter-
mine whether protective action is required.
XXXIV. PROFESSIONAL RESPONSIBILITY MINI REVIEW

C. SINGLE VIOLATION SUFFICIENT TO IMPOSE DISCIPLINE

A single incident of misconduct subjects a lawyer to professional discipline. Special
circumstances are considered regarding sanctions, but not as to whether there is a viola-
tion. To avoid discipline, a lawyer must act reasonably to put his cases on temporary hold
if necessary due to personal circumstances.

D. MALPRACTICE AND OTHER CIVIL LIABILITY

1. Relationship Between Disciplinary Matters and Malpractice Actions
A malpractice action differs from a disciplinary matter in three ways: (1) the forum in
a malpractice action is a civil court, not a disciplinary tribunal; (2) in a malpractice
action, the lawyer’s adversary is an injured plaintiff, not the state bar; and (3) the
purpose of a malpractice action is to compensate the injured plaintiff, not to punish
the lawyer or to protect the public from future wrongs.

2. Ethics Violation as Evidence of Malpractice

The violation of an ethics rule does not automatically mean that the lawyer has
committed malpractice, nor does it create a presumption of malpractice, but courts
do treat it as relevant evidence of malpractice.

3. Theories of Malpractice Liability

The plaintiff in a legal malpractice action has a choice of legal theories, including:
(1) intentional tort (such as fraud, misrepresentation, malicious prosecution, abuse
of process, or misuse of funds); (2) breach of fiduciary duties (these duties include
loyalty, confidentiality, and honest dealing); (3) breach of contract (either an express
contract or an implied promise by the lawyer to use ordinary skill and care); and (4)
simple negligence, the most common theory in legal malpractice actions.

a. Elements of Negligence
Simple negligence requires the plaintiff to prove four elements: a duty of due
care, a breach of that duty, legal causation, and damages.

1) Duty of Due Care

An attorney owes a duty of due care not only to her client, but also to any
third party where: (1) the third party was intended to benefit by the attorney’s
rendition of legal services, or (2) the attorney invited the third person to rely
on her opinion or legal services. The standard of care for an attorney is the
competence and diligence normally exercised by attorneys in similar circum-
stances. If an attorney represents to a client that she has greater competence
or will exercise greater diligence than that normally demonstrated by attor-
neys undertaking similar matters, she is held to that higher standard.

2) Breach of Duty of Due Care

An attorney is not liable for “mere errors of judgment” as long as the
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXXV.

judgment was well-informed and reasonably made. An attorney is expected

to do reasonably competent legal research; if the answer to a legal
question could have been found by using standard research techniques,
the attorney’s failure to find it is a breach of the duty of due care.
Furthermore, if a reasonably prudent attorney would have referred a diffi-
cult matter to a legal specialist, a general practitioner’s failure to do so can
be a breach of the duty of due care.

3) Legal Causation
A malpractice plaintiff must prove that the injury would not have happened
but for the defendant’s negligence, and that it is fair under the circum-
stances to hold the defendant liable for unexpected injuries or for expected
injuries that happen in unexpected ways.

4) Damages
A malpractice plaintiff must prove damages. The plaintiff can recover for
direct losses and indirect but foreseeable losses.

4. Civil Liability Other than Malpractice

A lawyer also may be liable to a client on other grounds, such as breach of contract
(e.g., by failing to comply with the fee agreement) or breach of warranty (but note
that general predictions of success in the case will not result in liability).

5. Liability for Negligence of Others

An attorney can be held liable for injuries caused by a negligent legal secretary,
law clerk, or other person acting within the scope of his employment (respondeat
superior). In a general partnership, each law firm partner is jointly and severally liable
for the negligence of other partners committed in the ordinary course of partnership
business. (However, if the firm is set up as a limited liability entity, the partners may
be shielded from personal liability for the misconduct of others.)

6. Malpractice Insurance
The ABA Model Rules and the vast majority of states do not require lawyers to carry
malpractice insurance, but prudent lawyers carry ample coverage.

7. Settling Malpractice Claims

A lawyer must not settle a pending or potential malpractice claim with an unrepre-
sented client or former client without first advising that person, in writing, to seek
independent advice about the settlement and giving that person time to seek that
advice.

CMR A lawyer who has breached a duty to his client cannot escape discipline
Exam Tip
by reimbursing the client for any loss.
XXXVI. PROFESSIONAL RESPONSIBILITY MINI REVIEW

8. Contracting with Client to Limit Malpractice Liability

A lawyer is prohibited from contracting with a client to prospectively limit her
malpractice liability, unless the client is independently represented in making the
contract. (However, a lawyer may agree prospectively with a client to arbitrate all
legal malpractice claims, provided that such an agreement is proper under local law
and the client understands the scope and effect of the agreement.)

VI. LITIGATION AND OTHER FORMS OF ADVOCACY

A. MERITORIOUS CLAIMS AND CONTENTIONS ONLY

A lawyer is subject to discipline for bringing a frivolous proceeding or taking a frivo-
lous position on an issue in a proceeding. A “frivolous” position is one that cannot be
supported by a good faith argument under existing law and cannot be supported by
a good faith argument for changing the law. This rule does not prohibit a lawyer for a
criminal defendant from conducting the defense so that the prosecutor must prove
every necessary element of the crime.

B. DUTY TO EXPEDITE LITIGATION

A lawyer has an affirmative duty to expedite litigation. The duty to expedite does not
require the lawyer to take actions that would harm the client’s interests, but realizing
financial or other gain from delay is not a legitimate interest.

C. DUTY OF CANDOR TO THE TRIBUNAL

1. Candor About Applicable Law
An attorney is subject to discipline for knowingly making a false statement of law
to the court or failing to correct a previously made false statement of material law.
Furthermore, an attorney must disclose a legal authority in the controlling jurisdic-
tion that is directly adverse to his client’s position and that has not been disclosed
by the adversary.

2. Candor About Facts of Case

An attorney is subject to discipline for knowingly making a false statement of fact to
the court or failing to correct a previously made false statement of material fact. An
attorney’s failure to speak out is, in some contexts, the equivalent of an affirmative
misrepresentation.

3. No Obligation to Volunteer Harmful Facts

An attorney generally has no duty to volunteer a fact that is harmful to his client’s
case, except that a lawyer in an ex parte proceeding must inform the tribunal of
all material facts known to the lawyer that will help the tribunal make an informed
decision.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXXVII.

DUTY OF CANDOR TO THE TRIBUNAL

An attorney may be subject to discipline for:

LAW FACTS EVIDENCE

Knowingly making a Knowingly making a Knowingly offering

false statement of false statement of fact false evidence
law to the court or to the court or failing to
failing to correct a correct a previously
previously made made false statement
false statement of of material fact
material law
or
or
Failing to volunteer to
Failing to disclose the tribunal known
directly adverse law material facts if the
of controlling proceeding is ex parte
jurisdiction

CMR Chart

4. Using False Evidence

A lawyer is subject to discipline for offering evidence that the lawyer knows is false
and may refuse to offer evidence that she reasonably believes is false, except for a
criminal defendant’s testimony on his own behalf. If a lawyer has offered a piece of
evidence and later discovers that it is false, she must:

(i) Talk to the client confidentially and try to persuade him to rectify the situation;

(ii) If that fails, seek to withdraw; and

XXXVIII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

(iii) If withdrawal is not permitted or will not remedy the situation, the lawyer must
make disclosure to the court.

Note that this obligation ceases at the conclusion of the proceedings, which include
appeals.

CMR Beware of an exam question in which the client prevails in a proceeding,

Exam Tip
the opposing party does not file an appeal, and the client then tells the
lawyer in confidence that he lied. Remember that the lawyer is under no
obligation to reveal the perjury to anyone because the proceeding is over.

a. False Testimony by Criminal Defendant

Under the ABA Model Rules and the Restatement, when the client insists on
testifying to something that the lawyer knows is false, the criminal defense
lawyer should follow the three steps stated above.

5. Other Corruption of an Adjudicative Proceeding

A lawyer who represents a client in an adjudicative proceeding must take appro-
priate measures to prevent any person from committing criminal or fraudulent
conduct that will corrupt the proceedings. Examples of such conduct are: (1) hiding or
destroying evidence, (2) bribing a witness, (3) intimidating a juror, (4) buying a judge,
and (5) failing to obey a law or court order to disclose information.

D. DUTY OF FAIRNESS TO OPPOSING PARTY AND COUNSEL

1. Opponent’s Access to Evidence
A lawyer must not suppress or tamper with evidence.

2. Falsifying Evidence and Assisting in Perjury

A lawyer must neither falsify evidence nor counsel or assist a witness to testify
falsely.

3. Abusing Discovery Procedures

A lawyer must not make frivolous discovery requests or fail to make reasonable
efforts to comply with a legally proper discovery request made by an adversary.

4. Paying Witnesses
A lawyer must not offer an inducement to a witness that is prohibited by law. Except
when local law prohibits, the following payments to witnesses are proper:

a. Travel, meals, and lodging expenses;

b. Compensation for time lost from the witness’s job; and

 PROFESSIONAL RESPONSIBILITY MINI REVIEW XXXIX.

c. Reasonable fees to expert witnesses, but these may not be contingent on the
outcome of the case or the content of the expert’s testimony.

5. Securing Absence or Noncooperation of Witness

A lawyer must not advise or cause a person to secrete himself or to flee the jurisdic-
tion for the purpose of making him unavailable as a witness. However, a lawyer may
advise a person not to voluntarily give information to an opponent or other party if:
(1) the person is a client or relative, employee, or agent of a client; and (2) the lawyer
reasonably believes that the person’s interests will not be harmed by not volun-
teering the information.

6. Violating Court Rules and Orders

A lawyer must not knowingly violate a rule of procedure, a rule of evidence, a rule of
court, or an order made by the court, but a lawyer may refuse to obey such a rule or
order in making a good faith challenge to its validity.

7. Chicanery at Trial
A lawyer is subject to discipline for chicanery at trial, including:

a. Referring to inadmissible material;

b. Asserting personal knowledge of contested facts; and

c. Asserting personal opinions about the justness of a cause, credibility of a

witness, culpability of a civil litigant, or guilt or innocence of an accused.

8. Using Threats to Gain Advantage in Civil Case

A lawyer may bring, or threaten to bring, criminal charges against her adversary
in order to gain an advantage for her client in a civil case if the criminal and civil
matters are closely related and the civil case and criminal charges are warranted.
However, a lawyer must not threaten to report adversary counsel for a disciplinary
violation to gain such an advantage. Disciplinary violations cannot be used as
bargaining chips.

E. DUTY TO PRESERVE IMPARTIALITY AND DECORUM OF TRIBUNAL

1. Improper Influence
A lawyer must not seek to influence a judge, court official, juror, or prospective juror
by improper means.

2. Improper Ex Parte Communication

While a proceeding is pending in a tribunal, a lawyer must not have an ex parte
communication with a judge, court official, juror, or prospective juror except when
authorized by law or court order.
XL. PROFESSIONAL RESPONSIBILITY MINI REVIEW

a. Judges and Court Officials

A written communication to a judicial officer is not ex parte if a copy of the
communication is timely sent to the opposing parties. A lawyer, however, must
not communicate orally on the merits of a matter with a judicial officer without
giving adequate notice to her adversary.

b. Jurors and Prospective Jurors

In general, before and during the trial of a case, a lawyer connected with the
case must not communicate on any subject with a juror or prospective juror.
She may, however, discreetly investigate members of a jury panel for limited
reasons, e.g., background, grounds for challenge, etc. Although reviewing a
juror’s or prospective juror’s public Internet presence is generally permissible,
sending an “access request” to the person’s social media account is prohibited.
After the trial is over and the jury is discharged, a lawyer must not communicate
with a former jury member if: (1) local law or a court order prohibits such commu-
nication; (2) the juror has told the lawyer that he does not want to communicate;
or (3) the communication involves misrepresentation, coercion, or harassment.
Also, even a lawyer who is not connected with the case must not communicate
with a juror about the case during trial.

3. Disruptive Conduct
A lawyer must not engage in conduct intended to disrupt a tribunal.

F. TRIAL PUBLICITY
The litigants’ right to a fair trial must be balanced against the rights of the press and the
public to disseminate and to receive information. ABA Model Rule 3.6 prohibits a lawyer
connected with the case from making out-of-court public statements that the lawyer
reasonably should know will have a substantial likelihood of materially prejudicing the case.

1. Right of Reply
Despite the above rule, a lawyer may make a public statement that a reasonable
lawyer would believe is required to protect a client from the substantial undue preju-
dicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.

2. Additional Constraint on Criminal Prosecutors

A prosecutor must not make extrajudicial comments that have a substantial likeli-
hood of heightening public condemnation of the accused.

3. Dry Facts About Case Permitted

Despite the general rule against prejudicial statements, a lawyer connected with the
case may publicly state certain “dry facts” about the case, including: (1) any informa-
tion already in the public record, (2) what claim and defense are involved, (3) the
names of the people involved, (4) the scheduling or result of any step in litigation, (5)
the fact that an investigation is ongoing, (6) a warning of danger if appropriate, and
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XLI.

(7) routine booking information about a criminal defendant (name, address, arresting
officers, etc.).

4. Rules Apply to Associated Lawyers

The rules on trial publicity apply equally to other lawyers who are associated in a law
firm or agency with the lawyers participating in the case.

G. TRIAL COUNSEL AS WITNESS

1. Reasons to Avoid Dual Role
Several problems arise when a trial lawyer also testifies as a witness: conflict of
interest, confusion of advocacy with evidence, and unfairness to the adversary.

2. Ethical Limitations Imposed

For the above reasons, a lawyer must not act as an advocate at a trial in which she is
likely to be a necessary witness.

a. Exceptions
A lawyer-witness may continue as trial counsel if:

1) Her testimony will concern only an uncontested matter or a mere

formality;

2) Her testimony will concern only the nature and value of the legal services
rendered in the case;

3) Her withdrawal as trial counsel would cause a substantial hardship on her

client; or

4) Another lawyer in her firm is likely to be called as a witness (unless to

continue would constitute a conflict of interest).

3. Conflict of Interest Rules Also Apply

In addition to complying with the above rule, a lawyer who is both an advocate and
a witness must also comply with the general conflict of interest principles regarding
current and former clients. (See IV.B., D., supra.)

VII. TRANSACTIONS AND COMMUNICATIONS WITH PERSONS

OTHER THAN THE CLIENT

A. TRUTHFULNESS IN STATEMENTS TO THIRD PERSONS

1. Must Not Make False Statements of Material Fact or Law
When dealing on behalf of a client with a third person, a lawyer must not make false
statements of law or fact. Conventional puffery, however, is permitted.
XLII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

2. Must Disclose Material Fact to Avoid Client’s Crime or Fraud

A lawyer must disclose material facts to a third person when necessary to avoid
assisting the client in a crime or fraud—unless the lawyer is forbidden to do so by
the ethical duty of confidentiality, in which case the ABA Model Rules require the
lawyer to withdraw.

B. COMMUNICATION WITH PERSONS REPRESENTED BY COUNSEL

1. When Communication Forbidden
A lawyer must not communicate about a matter with a person the lawyer knows is
represented by counsel in that matter, unless that person’s counsel consents, or
unless the law or a court order authorizes the communication. This is true even if the
represented person initiates or consents to the communication.

2. Application to Organizations
Corporations and other organizations are “persons” for the purpose of this rule.
Such entities are comprised of individuals referred to as constituents—i.e., officers,
directors, employees, and shareholders of a corporation (or individuals in analo-
gous positions in noncorporate organizations). Thus, a lawyer must get the consent
of the organization’s counsel before communicating with a present organization
constituent: (1) who supervises, directs, or regularly consults with the organiza-
tion’s lawyer about the matter; (2) whose conduct may be imputed to the organiza-
tion under civil or criminal law; or (3) who has authority to obligate the organization
concerning the matter. However, if the constituent is represented in the matter
by her own counsel, then consent by that counsel (rather than the organization’s
counsel) is sufficient. Consent is not needed before talking to a former constituent of
the organization. However, when talking with either a present or former constituent,
a lawyer must take care not to violate the organization’s legal rights, such as the
attorney-client privilege.

3. Communications Allowed by Rule

A lawyer may communicate with a represented person when authorized by law or
court order or when the communication does not concern the subject of the repre-
sentation. Also, represented parties are not prohibited from communicating directly
with each other. Furthermore, a lawyer is not prohibited from interviewing the
intended unrepresented witnesses of the opposing party.

C. DEALING WITH UNREPRESENTED PERSONS

When dealing with an unrepresented person, a lawyer must not state or imply that he is
disinterested and must make reasonable efforts to correct any misunderstanding by the
unrepresented person as to his role in the matter. Likewise, if the lawyer knows that his
client’s interests are likely to be in conflict with those of the unrepresented person, he
must not give legal advice to that person (other than to get a lawyer).
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XLIII.

ATTORNEY COMMUNICATIONS WITH

THIRD PARTIES

Is the third party represented by counsel?

Yes No

Does the The attorney may

communication communicate with
concern the the third party as
No The attorney
subject matter of long as the attorney:
the representation? may communicate
• does not imply
with the third party
that she is
as long as:
Yes disinterested;
• the communication
• takes steps to
is not intended to
clear up
embarrass, delay,
Has the third party’s Yes misunderstandings
or burden the third
counsel consented? about her role of
party; and
which she is or
• the method of should be aware;
No communication and
does not violate
• does not purport
Yes the third party’s
to give advice
Does the law allow rights.
other than to get
the communication?
an attorney if the
third party’s
No interests are likely
to conflict with
those of her client.
The attorney may
not communicate
directly with the
third party.

CMR Chart
XLIV. PROFESSIONAL RESPONSIBILITY MINI REVIEW

D. RESPECT FOR RIGHTS OF THIRD PERSONS

In representing a client, a lawyer must not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person. A lawyer must not use methods
of obtaining evidence that violate the legal rights of a third person.

1. Documents Sent to Lawyer By Mistake

When a lawyer obtains a document or electronically stored information by mistake,
and knows that it was sent by mistake, she must promptly notify the sender so that
the sender can take protective measures.

VIII. DIFFERENT ROLES OF THE LAWYER

A. LAWYER AS ADVISOR TO THE CLIENT

1. Duty to Render Candid Advice
A lawyer must exercise independent judgment and render candid advice to the
client.

2. Giving Advice Beyond the Law

A lawyer may give a client not only legal advice, but also moral, economic, social, or
political advice when relevant to the client’s situation.

3. Volunteering Advice
When appropriate, a lawyer may volunteer advice without being asked.

B. EVALUATION FOR USE BY THIRD PERSONS

A lawyer may evaluate a client’s affairs for the use of a third person if the lawyer reason-
ably believes that making the evaluation is compatible with the lawyer’s other responsi-
bilities to the client. If the lawyer knows that the evaluation will materially harm the client,
the lawyer must obtain the client’s informed consent before making the evaluation.

1. Confidentiality
Except as disclosure is authorized in connection with a report of an evaluation, the
ordinary rules of confidentiality apply to information gained during the evaluation.

2. Liability to Third Person

A lawyer may be liable to a third person for a negligent evaluation of a client’s affairs.

C. LAWYER AS NEGOTIATOR
During negotiations, a lawyer must not make a false statement of material fact. However,
a lawyer need not volunteer facts that would be detrimental to the client’s position or
correct an opponent’s misapprehension regarding the strength of his client’s case. The
key factor in determining whether a statement contains a material fact is whether the
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XLV.

opponent would be reasonable in relying on the statement; e.g., estimates of price or

value and what a party would accept as a settlement are not statements of material
fact.

D. LAWYER AS THIRD-PARTY NEUTRAL

A lawyer serves as a third-party neutral when she assists two or more nonclients in
resolving a dispute between them (e.g., arbitrator, mediator). When a lawyer serves as
a third-party neutral, she is subject not only to the ordinary rules of legal ethics, but
also to various codes of conduct devised by groups such as the American Arbitration
Association.

1. Warning to Unrepresented Parties

A lawyer who serves as a third-party neutral does not represent any of the parties.
Because a party may erroneously believe that the lawyer is protecting his interests,
the lawyer must explain the situation to the unrepresented party. The lawyer should
explain that the attorney-client privilege does not apply to communications between
them.

2. Conflicts of Interest
A lawyer who serves as a third-party neutral in a matter must not thereafter become
the lawyer for anyone involved in the matter, unless all of the parties give their
informed consent, confirmed in writing. Such a conflict is also imputed to lawyers in
the disqualified lawyer’s firm, but may be cured by screening the disqualified lawyer
and notifying the parties in writing about the screening arrangement. No conflict
arises when a lawyer who served as a partisan arbitrator for a party is later asked to
become that party’s lawyer.

E. SPECIAL RESPONSIBILITIES OF A PROSECUTOR

A prosecutor must assure that a defendant is tried by fair procedures and that guilt is
decided on proper and sufficient evidence.

1. Must Have Probable Cause

A prosecutor must not proceed with a charge that she knows is not supported by
probable cause.

2. Protecting Accused’s Right to Counsel

A prosecutor must make reasonable efforts to assure that the accused is advised
of the right to counsel, advised of the procedure for obtaining counsel, and given a
reasonable opportunity to obtain counsel.

3. Securing Waiver of Pretrial Rights

A prosecutor must not seek to obtain from an unrepresented accused a waiver of
important pretrial rights.
XLVI. PROFESSIONAL RESPONSIBILITY MINI REVIEW

4. Disclosing Evidence that May Help Defense

A prosecutor must timely disclose to the defense all evidence and information
known to the prosecutor that tends to negate the guilt of the accused or mitigate the
degree of the offense.

5. Disclosing Information that May Mitigate Punishment

When a convicted person is to be sentenced, the prosecutor must disclose to the
defense and the court all unprivileged mitigating information known to the prose-
cutor.

6. Disclosing Evidence to Remedy Conviction

A prosecutor must promptly disclose new, credible, and material evidence that
creates a reasonable likelihood that a defendant was wrongly convicted. Further, the
prosecutor must seek to remedy the conviction of a defendant in his jurisdiction if he
knows of clear and convincing evidence that the defendant was innocent.

7. Public Statements About Pending Matters

Except for statements necessary to inform the public of the nature and extent of the
prosecutor’s action and that serve a legitimate law enforcement purpose, a prose-
cutor must not make extrajudicial statements that have a substantial likelihood of
heightening public condemnation of the accused. The prosecutor must take reason-
able care to prevent investigators, police, employees, and other subordinates from
making such statements.

8. Subpoenaing Other Lawyers

A prosecutor must not subpoena a lawyer to give evidence about a client unless the
information is not privileged, is essential, and cannot be obtained in any other way.

9. Other Government Lawyers

Many of the above duties also apply to all government lawyers. A government lawyer
with discretionary power regarding civil litigation should not institute or continue
unfair actions. A government lawyer has a responsibility to develop a full record and
must not use her position or power to harass parties or to force unjust settlements or
results.

F. ADVOCATE IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS

1. Appearances in a Representative Capacity
When a lawyer appears on behalf of a client before a legislative body or administra-
tive agency, the lawyer must disclose that he is acting in a representative capacity.

2. Duties of Candor and Respect

In such appearances, the lawyer must generally follow the same rules of conduct as
though in court.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XLVII.

3. Limits of These Rules

These rules do not apply: (1) when a lawyer represents a client in bilateral negotia-
tions with the government, (2) in an application for a license or other privilege, (3)
when the government is investigating the client’s affairs, or (4) when the government
is examining the client’s compliance with a regular reporting requirement (such as
the filing of tax returns).

G. ORGANIZATION AS CLIENT
1. Duty of Loyalty to Organization
A lawyer owes a duty of loyalty to the organization, not to the people (stockholders,
officers, directors, etc.) who are its constituents.

2. Conflicts Between Organization and Its Constituents

When the interests of the organization and one of its constituents are in conflict, the
lawyer for the organization should caution the person in question that she repre-
sents the organization, not the person.

3. Protecting Organization’s Interests

When a person associated with the organization advocates an action that may
cause it substantial injury, a lawyer must protect the interests of the organization.
The lawyer ordinarily must report the action to a higher authority in the organization,
and if necessary to the highest authority. If the highest authority fails to take timely,
appropriate action, the lawyer may report the relevant information to appropriate
persons outside of the organization (even if the information is protected by the duty
of confidentiality). The lawyer is only authorized to do so to the extent the lawyer
reasonably believes is necessary to prevent substantial injury to the organization.
However, when a lawyer is hired by the organization to investigate an alleged viola-
tion of law or defend the organization or its constituents against an alleged violation
of law, the lawyer may not report any information outside of the organization.

4. Representing Both Organization and an Associated Person

The lawyer for an organization may represent both the organization and one of its
constituents if the ordinary conflict of interest rules are satisfied.

5. Serving as Both Director and Lawyer

A lawyer may serve as both a director and as a lawyer for an organization, but the
dual role can create conflicts of interest. For example, when a lawyer participates
in a meeting as a director, the attorney-client privilege will not apply to communica-
tions at the meeting, but some of the other directors may not realize that. If there
is a substantial risk that the dual role will compromise the lawyer’s professional
judgment, the lawyer should either resign as director or not act as the organization’s
lawyer.
XLVIII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

6. Securities Lawyer’s Duties Under Sarbanes-Oxley Act

Congress passed the Sarbanes-Oxley Act, which instructs the Securities and
Exchange Commission (“SEC”) to make rules for securities lawyers who discover that
their clients are violating federal or state securities laws. The following discussion
includes highlights of the rules adopted by the SEC.

a. Application to “Securities Lawyers”

The rules apply to lawyers who represent an issuer of securities and who
practice before the SEC (“securities lawyers”). This includes lawyers who give
advice about a document that will be filed with the SEC or advice about whether
information must be filed with the SEC.

b. Reporting Requirement
If a securities lawyer becomes aware of credible evidence that her client
is materially violating a federal or state securities law, she must report the
evidence to her client’s chief legal officer (“CLO”). The same reporting duty
applies to credible evidence that one of her client’s personnel has breached a
fiduciary duty under federal or state law, or has committed a “similar material
violation” of federal or state law.

c. Investigation by CLO
The CLO must investigate the situation to determine whether a violation
occurred.

d. If Violation Found—“Appropriate Response” Required

If the CLO concludes that a violation occurred, the CLO must take all reason-
able steps to get the client to make an “appropriate response.” That means that
the client must stop or remedy the violation and make sure it does not happen
again. The CLO must report those results to the securities lawyer.

e. When Appropriate Response Not Taken

If the securities lawyer believes that the CLO did not achieve an appropriate
response from the client, the securities lawyer must report the evidence to
either the client’s board of directors, the audit committee of the board, or
a committee made up of outside directors. Note that the Sarbanes-Oxley
reporting rule is mandatory, unlike ABA Model Rule 1.13(b), which gives the
lawyer some discretion about how to proceed (see 3., supra).

f. Revealing Confidential Information

A securities lawyer may reveal to the SEC any confidential information that is
reasonably necessary to: (1) stop the client from committing a violation that will
cause substantial financial injury to the client or its investors; (2) rectify such a
financial injury if the lawyer’s services were used to further the violation; or (3)
prevent the client from committing or suborning perjury in an SEC matter or
 PROFESSIONAL RESPONSIBILITY MINI REVIEW XLIX.

lying in any matter within the jurisdiction of any branch of the federal govern-
ment.

g. Compliance with Rules

A securities lawyer who complies with the Sarbanes-Oxley rules cannot be held
civilly liable for doing so and cannot be disciplined under any inconsistent state
rule.

h. Action When Securities Lawyer Is Fired

If a securities lawyer is fired for complying with the Sarbanes-Oxley rules, she
may report the firing to the client’s board of directors (thus setting up the client
for an expensive wrongful termination suit).

IX. SAFEKEEPING FUNDS AND OTHER PROPERTY

A lawyer is subject to discipline for misappropriating or borrowing a client’s money or
property or for commingling it with her own money or property. The following rules apply
to funds or other property held by a lawyer in connection with a representation.

A. SAFEGUARDING PROPERTY
A lawyer must identify a client’s property as belonging to the client and must put it in a
safe place. Lawyers are required to hold the property of others with the care required
of a professional fiduciary. Accordingly, a lawyer cannot use the client’s property for
her own purposes, and must promptly take reasonable steps necessary to safeguard the
client’s property.

B. CLIENT TRUST FUND ACCOUNT

All money that a lawyer receives in connection with a representation must promptly
be placed in a client trust fund account, separate from the lawyer’s own personal and
business accounts.

1. Type of Account
The client trust fund account must be located in the state where the lawyer practices
(or elsewhere with the client’s consent). Ordinarily, a lawyer must not put her own
money into the client trust account, but she may do so for the sole purpose of paying
bank service charges.

a. Large Sum Held for Long Period

If the lawyer is entrusted with a large sum for a long period, it should go into
a separate interest-bearing account, and the interest belongs to the client for
whom it is held.

b. Small Sums
If the lawyer is entrusted with a small sum to hold for a short period, the lawyer
L. PROFESSIONAL RESPONSIBILITY MINI REVIEW

should put it into a pooled client trust account, which is typically a checking
account that holds money entrusted by numerous clients. Under Interest On
Lawyer Trust Account (“IOLTA”) programs, if a client entrusts a lawyer with a sum
that is too small to earn any net interest, the lawyer must put it into a pooled
checking account that earns interest. After the bank deducts its service charges
from the interest, the bank sends the remaining interest to the state bar or to
a legal foundation, which uses the interest to fund charitable legal programs.
The United States Supreme Court has upheld the constitutionality of IOLTA
programs.

2. Funds that Must Be Placed in Account

a. Advances
Advances for costs and expenses and legal fees not yet earned must be put
into a trust account. The lawyer may make withdrawals as fees are earned if
there is no dispute concerning the lawyer’s right to do so.

b. Disputed Funds
If there is a dispute over funds (between the lawyer and the client, or between
the client and some third person), the lawyer must keep the disputed portion in
the client trust account until the dispute is resolved. This is further discussed in
D., infra.

C. DUTY TO NOTIFY, KEEP RECORDS, RENDER ACCOUNTINGS, AND PAY

OVER PROMPTLY
A lawyer must keep complete, accurate, and up-to-date records of money or property
received on behalf of a client, must render periodic accountings to the client, must notify
the client promptly when money or property has been received on the client’s behalf, and
must promptly pay over money or deliver property when it is due to the client or a third
party.

D. DISPUTED PROPERTY
When a lawyer is in possession of property in which two or more persons (one of whom
may be the lawyer) claim interests, the disputed portion of the property must be kept
separate by the lawyer until the dispute is resolved. The lawyer must promptly distribute
all portions of the property as to which the interests are not in dispute.

1. Funds in Which Both Client and Lawyer Have Interest

When a lawyer receives funds that are to be used, in part, to pay the lawyer’s fee,
they must be put into a trust account until there is an accounting and severance
of the respective amounts due the lawyer and the client. If the client disputes the
amount that is due to the lawyer, then the disputed portion must be kept in the client
trust account until the dispute is resolved.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW LI.

CMR A common exam fact pattern asks whether an attorney who receives a
Exam Tip
settlement check or other payment to the client from which his fee is to be
paid can properly forward the entire sum to the client. For exam purposes,
the answer is yes, it is ethically proper. (As a practical matter, however,
most attorneys would prefer to control the purse until the fee is paid;
i.e., most attorneys would retain the fee amount in the client trust fund
account pending an accounting.)

2. Funds in Which a Third Party Has an Interest

Sometimes a third party (e.g., client’s creditor) has an interest in funds that come
into the lawyer’s possession on behalf of a client. Statute, common law, or contract
may require the lawyer to protect the third party’s interest against interference by
the client; accordingly, when the third party’s claim is not frivolous, the lawyer must
refuse to surrender the funds to the client until the claim is resolved.

X. COMMUNICATIONS ABOUT LEGAL SERVICES

A. CONTENT-BASED RULES FOR ADVERTISING AND OTHER

COMMUNICATIONS
1. Basic Rule—Communications Must Be True and Not Misleading
A lawyer is subject to discipline for any type of communication about the lawyer
or the lawyer’s services that is false or misleading. A statement can be false or
misleading if it omits material information, would lead a reasonable person to an
unfounded conclusion, creates unjustified expectations, or makes unsubstantiated
comparisons. In some circumstances, including a disclaimer can cure the problem.

2. Identification of Advertiser
Every advertisement or other communication about the lawyer’s or firm’s services
must include the name and contact information (website address, telephone number,
e-mail address, or physical office location) of at least one lawyer or law firm that is
responsible for its content.

3. Firm Names, Letterheads, and Other Professional Designations

a. Using Names of Deceased or Retired Partners

A private law partnership may be designated by the names of one or more of its
current members. When partners die or retire, their names may be carried over
to successor partnerships. However, a law firm name is misleading if it includes
the name of a deceased lawyer who was not a former member of the firm, the
name of any lawyer who is not associated with the firm or predecessor firm, or
the name of a nonlawyer.
LII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

b. Using Names of Lawyers Who Have Entered Public Service

A private law firm must not use the name of a lawyer who holds public office
(either as part of the firm name or in communications on the firm’s behalf)
during any substantial period in which the lawyer is not regularly and actively
practicing with the firm.

c. Must Not Imply Connection with Public or Charitable Organization

Trade names (e.g., “The Bulldog Law Firm”) are permitted, provided the name
is not misleading and does not imply a connection with a governmental agency
or with a public or charitable legal services organization. If the trade name is a
geographical name (e.g., Greater Chicago Legal Clinic), a disclaimer explaining
that it is not a public legal aid organization may be required.

d. False Indications of Partnership

Lawyers must not imply that they are partners or are practicing together as one
law firm unless they really are.

e. Multistate Firms
A law firm that has offices in more than one jurisdiction may use the same name,
Internet address, or other professional designation in each jurisdiction.

4. Identifying Fields of Practice

A lawyer may communicate that she does or does not practice in particular fields of
law, and may claim to “specialize” or “concentrate” in a field if not false or misleading.
However, a lawyer must not state or imply that she is certified as a specialist in a
particular field of law, unless: (1) the lawyer has in fact been certified as a specialist
by an organization that has been approved by the ABA or by an appropriate state
authority; and (2) the name of the certifying organization is clearly identified in the
communication.

a. Patent and Admiralty Lawyers

Lawyers who practice admiralty law may call themselves “Proctors in Admiralty,”
or something similar, and lawyers who have been admitted to practice before
the United States Patent and Trademark Office may call themselves “Patent
Attorneys,” or something similar. A lawyer’s communications about these
practice areas are not prohibited by the rule above.

B. RECOMMENDATIONS
Subject to the exceptions below, a lawyer must not compensate, give anything of value,
or promise to give anything of value to a person for recommending the lawyer’s services.

CMR Promising or giving something “of value” does not always mean giving money
Exam Tip
or property. It can also mean providing services for free, sending clients
someone’s way, etc.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW LIII.

1. Paying for Advertising and Other Services

A lawyer may pay the reasonable costs of permitted advertisements. Additionally,
a lawyer may pay the usual charges of a legal service plan, a not-for-profit lawyer
referral service, or a qualified lawyer referral service.

2. Purchase of a Law Practice

A lawyer may purchase a law practice, even though the seller is, in a sense, recom-
mending the purchasing lawyer to her clients.

3. Reciprocal Referral Arrangements

A lawyer may set up a reciprocal referral arrangement with another lawyer or with
a nonlawyer professional. A reciprocal arrangement must not be exclusive, the
referred client must be told about the arrangement, and the arrangement must not
interfere with the lawyer’s professional judgment as to making referrals or providing
substantive legal services. Reciprocal referral arrangements should not be of indefi-
nite duration and should be reviewed periodically to make sure that they comply
with the ABA Model Rules.

CMR Don’t confuse reciprocal referral agreements with referral fees (which
Exam Tip
are generally prohibited, with certain exceptions). In a reciprocal referral
agreement, no money is exchanged—the parties are simply referring
clients or customers to each other.

4. Nominal Gifts or Gratuities

A lawyer may give a nominal gift or gratuity as an expression of appreciation to
a person who recommended the lawyer or the lawyer’s firm, provided the gift or
gratuity was not intended or reasonably expected to be a form of compensation for
recommending the lawyer’s services.

C. SOLICITATION
A solicitation is a communication initiated by a lawyer or firm that is directed to a
specific person the lawyer knows or reasonably should know needs legal services in a
particular matter, and that offers to provide, or can reasonably be understood as offering
to provide, legal services for that matter.

1. Live Person-to-Person Solicitation Generally Prohibited

A lawyer or firm must not, by live person-to-person contact, solicit professional
employment when a significant motive for doing so is the lawyer’s or firm’s
pecuniary gain (offers to represent a person for free are permitted). “Live person-
to-person contact” means in-person, face-to-face, live telephone, or other real-
time visual or auditory person-to-person communications (e.g., Skype or FaceTime)
where the targeted person is subject to a direct personal encounter without time
for reflection.
LIV. PROFESSIONAL RESPONSIBILITY MINI REVIEW

a. Exceptions to Prohibition—Certain Targets Are Considered Less

Vulnerable
A lawyer or firm is generally not prohibited from initiating live person-to-person
contact with (1) other lawyers; (2) persons with whom the lawyer or firm has a
familial, close personal, or prior professional or business relationship (including
current and former clients); or (3) routine business users of the type of legal
services offered by the lawyer or firm.

2. Written, Recorded, or Electronic Solicitation Generally Permitted

Generally, a lawyer is not prohibited from sending truthful, nondeceptive written
communications (via mail, e-mail, text message, chat room message, etc.) to persons
known to face a specific legal problem.

3. Circumstances Rendering All Contacts Impermissible

A lawyer is prohibited from soliciting professional employment, regardless of what
method is used or who the target is, if the solicitation involves coercion, duress, or
harassment, or if the person has indicated he does not wish to be solicited.

4. Use of Agents to Solicit

A lawyer must not use agents (runners or cappers) to solicit in a manner that the
lawyer could not herself solicit.

D. GROUP AND PREPAID LEGAL SERVICE PLANS

A lawyer may personally contact a group that proposes to adopt a prepaid or group legal
service plan. Furthermore, the plan may itself make personal contact with prospective
subscribers who are not known to need specific legal services. However, the lawyer must
not participate in the plan if she owns or directs the operating organization.

E. GOVERNMENT REGULATION OF COMMUNICATIONS ABOUT LEGAL

SERVICES
The Supreme Court has recognized lawyer advertising as commercial speech protected
by the First and Fourteenth Amendments. States may thus adopt reasonable regulations
to ensure that the advertising is not false or misleading, but they may not completely
prohibit all lawyer advertising.

1. False and Misleading Ads and In-Person Solicitation May Be Banned

A state may prohibit all lawyer advertising that is false or misleading and may forbid
in-person solicitation for profit. To prevent misleading commercial speech, the
government may require commercial advertisers to make certain disclosures if such
a requirement is not unduly burdensome and is reasonably related to the state’s
interest in preventing deception.

2. Regulation of Truthful, Nondeceptive Advertising

Regulation of commercial speech is subject to intermediate constitutional scrutiny,
 PROFESSIONAL RESPONSIBILITY MINI REVIEW LV.

which means that it may be regulated only if: (1) the government asserts a substan-
tial interest, (2) the government demonstrates that the restriction directly and
materially advances the interest, and (3) the regulation is narrowly drawn.

XI. LAWYERS’ DUTIES TO THE PUBLIC AND THE LEGAL SYSTEM

A. PRO BONO PUBLICO SERVICE

Every lawyer has a professional responsibility to provide legal service to people who
cannot afford it. ABA Model Rule 6.1 recommends (but does not require) a minimum of 50
hours per year of uncompensated legal work for poor people or organizations that serve
the needs of poor people.

B. COURT APPOINTMENTS
Lawyers have an ethical obligation to help make legal service available to all who need it
by accepting a fair share of unpopular matters and unpopular or indigent clients. A lawyer
must not seek to avoid court appointments to represent clients except for good cause.
Examples of good cause are: (1) to represent the client would require the lawyer to violate
a law or disciplinary rule, (2) representing the client would impose an unreasonable finan-
cial burden on the lawyer, or (3) the lawyer’s personal feelings would prevent her from
representing the client effectively.

C. LIMITED LEGAL SERVICES PROGRAMS

A lawyer may participate in a quick-advice program (also called a “limited legal services”
program) sponsored by a court or nonprofit organization, such as a legal-advice hotline,
advice-only clinic, or program that shows people how to represent themselves in small
claims court. A lawyer-client relationship exists between the lawyer and person who
obtains the quick advice, but neither the lawyer nor person expects the relationship to
continue past the quick-advice stage.

1. Client Consents to Short-Term, Limited Legal Service

The lawyer must obtain the client’s informed consent to the limited scope of the
relationship. If the lawyer’s quick advice is not enough to set the client on the right
track, the lawyer must advise the client to get further legal help.

2. Conflict of Interest Rules Are Relaxed

The conflict of interest rules are relaxed somewhat in a quick-advice situation, but
the remainder of the Rules of Professional Conduct fully apply. Because a lawyer
who participates in a quick-advice program ordinarily has no time to do an ordinary
conflict of interest check, the conflicts principles regarding current and former clients
do not apply unless the lawyer actually knows that giving the quick advice creates a
conflict of interest. (See IV.B., D., supra, for a discussion of conflict of interest rules.)

3. Imputed Conflict Rule Is Also Relaxed

The rule of imputed conflicts of interest is also relaxed in a quick-advice situation.
LVI. PROFESSIONAL RESPONSIBILITY MINI REVIEW

A lawyer may dispense advice in a quick-advice program unless the lawyer

actually knows that he is disqualified from doing so because of a conflict imputed
from another lawyer in his firm. Conversely, a conflict created by advice a lawyer
dispenses in a quick-advice program will not be imputed to others in the lawyer’s
firm.

4. Conflicts Rules Apply Fully If Quick Advice Leads to Regular Representation

If a person who has received quick advice from a lawyer then wants to hire that
lawyer to render further service in the matter, the ordinary conflict of interest rules
apply to that further service.

D. MEMBERSHIP IN LEGAL SERVICES ORGANIZATIONS

Lawyers are encouraged to support and work for legal services organizations that
provide legal assistance to poor people. But conflicts of interest may arise between
people thus served and a lawyer’s regular, paying clients.

1. General Rule—May Serve as Director, Officer, or Member

A lawyer may serve as a director, officer, or member of a legal services organization,
even though the organization serves persons whose interests are adverse to those
of the lawyer’s regular clients.

2. Limitations on Rule
A lawyer must not knowingly participate in a decision or action of the organization if
doing so: (1) would be incompatible with the lawyer’s obligations to a client under the
general conflict of interest rules, or (2) would adversely affect the representation of
one of the organization’s clients.

E. LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS

1. Activities that May Harm Client
A lawyer may serve as a director, officer, or member of a law reform group, even
though a reform advocated by the group may harm one of the lawyer’s clients.

2. Activities that May Benefit Client

When a lawyer is working on a law reform project and is asked to participate in a
decision that could materially benefit one of the lawyer’s clients, the lawyer must
disclose that fact—but the lawyer need not identify the client.

F. ASSISTING IN JUDICIAL MISCONDUCT

A lawyer is subject to discipline for knowingly assisting a judge or judicial officer in
conduct that violates the Code of Judicial Conduct or other law.

G. STATEMENTS ABOUT JUDICIAL AND PUBLIC LEGAL OFFICIALS

A lawyer must not make a statement that the lawyer knows is false (or with reckless
 PROFESSIONAL RESPONSIBILITY MINI REVIEW LVII.

disregard as to its truth or falsity) about the qualifications or integrity of a judge, hearing
officer, or public legal official, or about a candidate for judicial or other legal office.

H. LAWYER RUNNING FOR JUDICIAL OFFICE

A lawyer who is running for judicial office must comply with the applicable provisions of
the Code of Judicial Conduct.

I. ABILITY TO INFLUENCE GOVERNMENT OFFICIALS

A lawyer must never state or imply that he has the ability to improperly influence a
government agency or official or to achieve results by means that violate the law or legal
ethics rules.

J. POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT EMPLOYMENT

A lawyer or firm must not accept government legal employment or a judicial appointment
if the lawyer or firm makes a political contribution for the purpose of obtaining such
employment or appointment. Exceptions: This rule does not apply to employment or
appointments: (1) for uncompensated services, (2) made on the basis of a lawyer’s experi-
ence and following a process that is free from influence based on political contributions, or
(3) made on a rotating basis from a list compiled without regard to political contributions.

XII. JUDICIAL ETHICS

A. SELECTION, TENURE, AND DISCIPLINE OF JUDGES

1. Federal Judges
Federal judges are appointed by the President with the advice and consent of
the Senate. They hold office for life during good behavior. A federal judge can be
removed from office by impeachment.

2. State Judges
In some states, judges are appointed by the governor or the state legislature, while
in others they are elected by the voters. In still others, judges are initially appointed
and later retained or rejected by the voters.

3. Code of Judicial Conduct

The ABA’s Code of Judicial Conduct (“CJC”) serves as a model for state and federal
judiciaries in formulating their own standards of judicial conduct. The CJC is binding
on the judges and all persons who perform judicial functions in a jurisdiction where
the CJC has been adopted by the appropriate authority.

B. PROMOTION OF JUDICIAL INTEGRITY AND AVOIDANCE OF

APPEARANCE OF IMPROPRIETY
The CJC requires a judge to uphold and promote the independence, integrity, and
LVIII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

impartiality of the judiciary and avoid actual impropriety as well as the appearance of
impropriety.

1. Compliance with Law and Promotion of Public Confidence in the Judiciary

A judge must comply with the law (including the CJC). At all times a judge must act
so as to promote public confidence in the independence, integrity, and impartiality of
the judiciary.

2. Test for Appearance of Impropriety

An “appearance of impropriety” arises when a judge’s conduct would create a
reasonable perception that she has violated the CJC or acted in some other manner
that reflects adversely on her honesty, impartiality, temperament, or fitness as a
judge.

3. Community Outreach
To promote public understanding of and confidence in the administration of justice, a
judge should initiate and participate in community outreach activities.

4. Abuse of Judicial Prestige

A judge must not abuse, or permit others to abuse, the prestige of her office to
advance her personal or economic interests or those of others.

a. References and Recommendations

Based on personal knowledge, a judge may act as a reference or provide a
recommendation for someone.

C. IMPARTIAL, COMPETENT, AND DILIGENT PERFORMANCE OF JUDICIAL

DUTIES
The CJC requires a judge to perform the duties of judicial office impartially, competently,
and diligently.

1. Judicial Duties
Judicial duties take precedence over all of the judge’s other activities.

2. Hearing and Deciding Assigned Matters

A judge must hear and decide all matters assigned to her unless disqualification is
required.

3. Impartiality and Fairness

A judge must uphold and apply the law, and must perform her duties fairly and
impartially.

4. External Influences on Judicial Conduct

Family, social, political, or financial interests must not influence a judge’s conduct or
judgment.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW LIX.

5. Competence, Diligence, and Cooperation

A judge must perform her judicial and administrative duties competently and
diligently. Also, a judge must cooperate with other judges and court officials in the
administration of court business.

6. Ensuring Right to Be Heard

A judge must allow every person with a legal interest in a proceeding the right to be
heard according to law. Although a judge may encourage settlements, he must not
act so as to coerce a settlement.

7. Avoidance of Bias, Prejudice, and Harassment

A judge must avoid bias, prejudice, and harassment, including that which is based on
race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation,
marital status, socioeconomic status, or political affiliation.

8. Ex Parte Communications
A judge must not initiate, permit, or consider communications between the judge
and a representative for one side of a matter when no representative from the other
side is present, except: (1) when expressly authorized by law; (2) with the consent
of the parties in an attempt to settle or mediate a pending matter; or (3) as circum-
stances require in emergency or administrative matters, provided no party will
gain an advantage and the other party is properly notified. Inadvertent receipt of
an unauthorized ex parte communication relating to substantive matters requires
prompt notification to the parties and an opportunity to respond.

9. Communications from Others

Except in the following circumstances, a judge must not initiate, permit, or consider
communications to the judge outside the presence of the parties concerning a
pending or impending matter.

a. Court Personnel
A judge may consult other judges and court personnel whose function is to aid
the judge in carrying out her responsibilities provided that the judge: (1) makes
reasonable efforts to avoid receiving factual information that is not part of the
record; and (2) does not abrogate her responsibility to decide the matter.

b. Disinterested Legal Experts

A judge may obtain the written advice of a disinterested legal expert, provided
the parties’ lawyers are notified of the expert’s identity and the subject matter
and given a chance to object and respond.

10. Independent Investigation of the Facts

A judge cannot independently investigate the facts of a case and must consider only
the evidence presented.
LX. PROFESSIONAL RESPONSIBILITY MINI REVIEW

11. Public Comments on Cases

When a case is pending in any court, a judge must not make any public comment
that might reasonably be expected to affect its outcome or impair its fairness, or
make any nonpublic comment that might substantially interfere with a fair trial. The
judge must require like abstention from court personnel. This duty does not apply to
a judge who is a litigant in a personal capacity.

12. Promises with Respect to Cases Likely to Come Before Court

With respect to cases or issues that are likely to come before the court, a judge must
not make pledges, promises, or commitments that are inconsistent with the impartial
performance of her adjudicative duties.

13. Decorum, Demeanor, and Communication with Jurors

A judge must require order and decorum in court proceedings, and must be patient,
dignified, and courteous to persons with whom she deals in an official capacity. A
judge must not commend or criticize jurors for their verdict other than in a court
order or opinion.

14. Administrative Appointments

Administrative appointments (e.g., appointments of assigned counsel, referees,
special masters, guardians, and court personnel) must be made impartially on the
basis of merit.

a. Appointments of Lawyers Contributing to Judge’s Election Campaign

A judge must not appoint a lawyer if the judge knows (or learns through a
timely motion) that the lawyer, or the lawyer’s spouse or domestic partner, has
contributed to the judge’s election campaign more than the jurisdiction’s speci-
fied dollar amount within a designated number of years prior to the judge’s
campaign. However, this prohibition does not apply if: (1) the position is substan-
tially uncompensated; (2) selection occurs as part of a rotation of qualified
lawyers; or (3) no other lawyer is willing, competent, and capable.

15. Responding to Judicial and Lawyer Misconduct

If a judge has knowledge that another judge has violated the CJC in a manner that
raises a substantial question as to the other judge’s honesty, trustworthiness, or
fitness as a judge, the judge must inform the appropriate authority. Similarly, a judge
who receives information indicating a substantial likelihood that another judge has
violated the CJC (or a lawyer has violated the RPC) must take appropriate action
(e.g., communicate with the alleged violator; report the alleged violator).

16. Disability and Impairment of Other Judges or Lawyers

A judge having a reasonable belief that a lawyer or another judge is impaired by
drugs, alcohol, or a mental, physical, or emotional condition must take appropriate
action, e.g., making a confidential referral to a judicial or lawyer assistance program.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW LXI.

17. Cooperation with Disciplinary Authorities

A judge must cooperate and be honest with judicial and lawyer disciplinary
agencies. Retaliation against persons for their cooperation with investigations is not
permitted.

18. Disqualification

a. General Rule—Whenever Impartiality Might Be Questioned

A judge must disqualify himself in a proceeding in which the judge’s impartiality
might reasonably be questioned.

1) Disclosure by Judge
A judge should disclose any information the judge believes the parties
might consider relevant to the question of disqualification.

2) Rule of Necessity
In emergency situations, case law has created a rule of necessity that
overrides the rules of disqualification and allows a judge to hear a matter
even though he would otherwise be disqualified from doing so but for the
necessity.

b. Bias or Personal Knowledge

A judge must disqualify himself if there is reasonable ground to believe that
the judge has: (1) a personal bias concerning a party or lawyer, or (2) personal
knowledge of relevant evidentiary facts.

c. Prior Involvement
A judge must disqualify himself if he: (1) served as a lawyer or material witness
in a matter; (2) was associated in law practice with a person who partici-
pated substantially as a lawyer in the matter while they practiced together;
(3) presided as a judge over the matter in another court; or (4) worked for the
government, and in such capacity participated personally and substantially as
a lawyer or public official concerning the proceeding, or publicly expressed in
such capacity an opinion concerning the merits of the matter in controversy.

d. Economic Interest
A judge must disqualify himself if he knows that he has an economic interest
in the matter or in one of the parties. Disqualification is also required if the
interest is held by the judge’s spouse, domestic partner, parent, or child
(wherever residing) or by any other member of the judge’s family who resides
in the judge’s household. A person has an “economic interest” if she owns
more than a de minimis legal or equitable interest. There are certain excep-
tions to the definition of “economic interest” (e.g., ownership of an interest in a
mutual fund).
LXII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

e. Involvement in the Proceeding

A judge must disqualify himself if he knows that he, his spouse or domestic
partner, a person within the third degree of relationship to either of them, or the
spouse or domestic partner of such a person, is involved (as a party, lawyer,
material witness, or interested third party) in the case. Anyone related closer
than cousin is within the third degree of relationship.

f. Persons Making Contributions to Judge’s Election Campaign

A judge who is subject to public election must disqualify himself when he knows
or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has,
within a certain number of years, made contributions to his election campaign
that exceed a specified amount.

g. Public Statements of Judicial Commitment

A judge must disqualify himself if, while a judge or judicial candidate, he has
made a public statement other than in a court proceeding, judicial decision, or
opinion that commits or appears to commit the judge to reach a particular result
or to rule in a particular way in the proceeding or controversy.

h. Remittal of Disqualification
The parties and their lawyers can remit (waive) all of the foregoing grounds for
disqualification, except personal bias concerning a party or a party’s lawyer.

D. EXTRAJUDICIAL ACTIVITIES
A judge must conduct extrajudicial activities to minimize the risk of conflict with the
obligations of judicial office.

1. In General
When engaging in extrajudicial activities, a judge must not: (1) participate in activi-
ties that will interfere with the judge’s duties, lead to frequent disqualification, or
reasonably appear to undermine the judge’s independence, integrity, or impartiality;
(2) engage in conduct that would reasonably appear to be coercive; or (3) use court
resources, except incidentally, for activities that concern the law, the legal system, or
the administration of justice, unless such additional use is legally permitted.

2. Governmental Hearings and Consultations

A judge must not appear voluntarily at a public hearing before, or otherwise consult
with, an executive or legislative body or official except on matters concerning the
law, legal system, or administration of justice.

3. Testifying as Character Witness

A judge must not testify as a character witness, except when duly summoned to do
so, i.e., by subpoena. Ordinarily, a judge should discourage parties from requiring his
testimony as a character witness.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW LXIII.

4. Governmental Committees and Commissions

A judge must not accept an appointment to a governmental committee or commis-
sion or other governmental position that does not relate to the law, legal system, or
administration of justice.

JUDGE’S EXTRAJUDICIAL ACTIVITIES

INVOLVING THE GOVERNMENT

Activity Allowable Only If:

Appearance at hearing Relates to the law, legal Or Pro se to protect judge’s
before or consultation with system, or administration own interests
executive or legislative of justice
official(s)

Appointment to Relates to the law, legal Representing

Or governmental unit
governmental committee system, or administration
or commission of justice on purely ceremonial
grounds or for a historical,
educational, or cultural
activity

CMR Chart

5. Participation in Educational, Religious, Charitable, or Civic Organizations and

Activities
Subject to the general restrictions on extrajudicial activities, a judge may take part
in activities sponsored by organizations or governmental entities concerned with
the law, the legal system, or the administration of justice, and those sponsored by
or on behalf of nonprofit educational, religious, charitable, fraternal, or civic organi-
zations.

6. Affiliation with Discriminatory Organizations

A judge must not hold membership in an organization that practices invidious
discrimination based on race, sex, gender, religion, national origin, ethnicity, or
sexual orientation. Moreover, even if the judge is not a member, she must not use
the organization’s benefits or facilities if she knows or should know that it practices
one of the prohibited forms of discrimination.
LXIV. PROFESSIONAL RESPONSIBILITY MINI REVIEW

JUDGE’S USE OF AND MEMBERSHIP IN

DISCRIMINATORY ORGANIZATIONS

Permissible Impermissible
Monday night men-only bridge club Men-only social club with 6,000 members
consisting of judge and his college chums and dining and health club facilities

Women’s support group for Women’s bar association that refuses

breastfeeding mothers to admit male members

Alumni association of historically Black Community booster group limiting

college with no non-Black graduates membership to African-Americans

The Bulgarian League, which limits The Irish Business Association, which
membership to persons of Bulgarian admits only persons of Irish descent and
descent and whose purpose is the whose purpose is to promote businesses
preservation of Bulgarian traditions in the community owned by persons of
Irish descent

Talmudic study group that limits Country club that excludes members on
membership to members of the the basis of race or religion
judge’s temple

CMR Chart

7. Use of Nonpublic Information

A judge must not intentionally disclose or use nonpublic information acquired in his
judicial capacity for any purpose unrelated to his judicial duties.

8. Financial, Business, or Remunerative Activities

Generally, a judge may not serve as an officer, director, manager, general partner,
advisor, or employee of a business. However, a judge may hold and manage
her own investments and those of her family and may manage or participate in a
business closely held by the judge or a family member, or in a business primarily
engaged in investing the financial resources of the judge or her family, unless such
activity will interfere with performance of the judge’s duties, will lead to frequent
disqualification, or will involve the judge in frequent or continuing relationships with
persons likely to come before the court on which the judge serves.
 PROFESSIONAL RESPONSIBILITY MINI REVIEW LXV.

9. Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things

of Value
A judge must not accept gifts, loans, bequests, benefits, or other things of value if
acceptance thereof is prohibited by law or would reasonably appear to undermine
the judge’s independence, integrity, or impartiality. Some gifts may be accepted
without being publicly reported (e.g., items of little intrinsic value, ordinary social
hospitality, books supplied on a complimentary basis for official use). Other gifts
must be publicly reported (e.g., gifts incident to a public testimonial, gifts from a
person who is likely to come before the judge).

10. Fiduciary Activities

Generally, a judge must not serve as a fiduciary (e.g., executor or trustee), unless she
does so for a family member. Such service must not interfere with the judge’s duties
or involve her in proceedings that would ordinarily come before her or that take
place in her court or one under its appellate jurisdiction. The judge should resign as
fiduciary if there is a conflict between her duties as a fiduciary and her duties under
the CJC.

11. Service as Arbitrator or Mediator

A full-time judge must not act as an arbitrator, mediator, or private judge unless
expressly authorized by law to do so.

12. Practice of Law

A full-time judge must not practice law. She may, without compensation, give legal
advice to or draft documents for a family member, but she may not act as a family
member’s lawyer in any forum.

13. Compensation for Extrajudicial Activities

Reasonable compensation for a judge’s extrajudicial activities (e.g., speaking,
teaching, or writing) is permitted unless acceptance thereof would reasonably
appear to undermine the judge’s independence, integrity, or impartiality.

14. Reimbursement of Expenses and Waiver of Fees or Charges

Unless otherwise prohibited by the CJC, a judge may accept reimbursements of
necessary and reasonable expenses for travel, food, lodging, or other incidentals,
or a waiver of tuition or registration expenses, from sources other than the judge’s
employer, if such expenses are associated with the judge’s participation in extrajudi-
cial activities permitted by the CJC.

15. Reporting Requirements

A judge must publicly report the amount or value of: compensation received for
permitted extrajudicial activities (see 13., supra); gifts and other things of value (see
9., supra) that exceed a designated dollar amount; and reimbursement of expenses
and waiver of charges (see 14., supra) that exceed a designated dollar amount.
LXVI. PROFESSIONAL RESPONSIBILITY MINI REVIEW

E. JUDGES’ POLITICAL AND CAMPAIGN ACTIVITIES

A judge or candidate for judicial office must not engage in political or campaign activity
that is inconsistent with the independence, integrity, or impartiality of the judiciary. A
“candidate” is a person who publicly announces her candidacy, declares with the election
or appointment authority, authorizes solicitation or acceptance of contributions or
support, or is nominated.
1. Political and Campaign Activities of Judges and Judicial Candidates in General
Generally, a judge or judicial candidate is prohibited from engaging in certain
campaign activities, including: (1) campaigning for, soliciting funds for, contributing to,
or endorsing a political organization or candidate (note: there are exceptions to these
rules for certain activities of judicial candidates engaged in within a time period
specified by other state law; see 2.a., infra); (2) personally soliciting or accepting
campaign contributions other than through an authorized campaign committee; (3)
using court resources in her campaign; (4) making a false or misleading statement;
(5) making a statement that would reasonably be expected to affect the outcome or
the fairness of a matter pending in court; or (6) in connection with cases, controver-
sies, or issues that are likely to come before the court, making pledges, promises, or
commitments that are inconsistent with the impartial performance of the adjudicative
duties of judicial office. Note, however, that a statement of personal views on legal,
political, or other issues is not prohibited.
2. Political and Campaign Activities of Judicial Candidates in Public Elections
A judicial candidate must act: (1) in a manner consistent with the independence,
integrity, and impartiality of the judiciary; (2) comply with applicable election laws;
(3) review and approve campaign materials prior to their dissemination; and (4) take
reasonable measures to ensure that other persons do not undertake on her behalf
activities that she would be prohibited from doing.
a. Certain Activities Permitted
Unless prohibited by law, a judicial candidate may, no earlier than a minimum
amount of time (to be determined by other state law) prior to the first applicable
election, do the following: (1) establish a campaign committee; (2) speak on
behalf of her candidacy through any medium; (3) publicly endorse or oppose
candidates for the same judicial office for which she is running; (4) attend or
purchase tickets for dinners or other events sponsored by a political organiza-
tion or a candidate for public office; (5) seek, accept, or use endorsements from
any person or organization other than a partisan political organization; and (6)
contribute to a political organization or candidate, but not more than a maxi-
mum dollar amount to be determined by each jurisdiction to any one recipient.
3. Activities of Candidates for Appointive Judicial Office
A candidate for appointment to judicial office may communicate with the appointing
or confirming authority and may seek the endorsement of a person or organization
(other than a partisan political organization).
 PROFESSIONAL RESPONSIBILITY MINI REVIEW LXVII.

POLITICAL AND CAMPAIGN ACTIVITIES OF

JUDGES AND JUDICIAL CANDIDATES

Activity Noncandidate Judge Candidate Judge

Lead or hold office in Impermissible Impermissible
political organization

Publicly endorse or Impermissible Impermissible

oppose a candidate for
other public office

Publicly endorse or Impermissible Permissible (within

oppose a candidate for allowable time period)
same judicial office

Contribute to a political Impermissible Permissible (within

organization or candidate allowable time period and
amount set by other state
law)

Speak on behalf of Impermissible Permissible to speak on

political organization behalf of judge’s own
candidacy (within
allowable time period set
by other state law)

Purchase tickets for or Impermissible Permissible (within

attend political gatherings allowable time period set
by other state law)

Solicit funds for a political Impermissible Impermissible

organization

CMR Chart
LXVIII. PROFESSIONAL RESPONSIBILITY MINI REVIEW

4. Campaign Committees
A judicial candidate running in a public election may establish a campaign committee
to manage and conduct her campaign. The candidate must direct the committee not
to solicit or accept contributions more than a certain amount of time (designated by
other state law) prior to the applicable election, nor more than a designated number
of days after the last election in which the candidate participated. The candidate
must also direct the committee to comply with campaign contribution limits and
disclosure requirements.

5. Activities of Judges Who Become Candidates for Nonjudicial Office

When a judge becomes a candidate for a nonjudicial elective office, she must resign
her judgeship unless applicable law permits the retention of her judicial office. If the
judge becomes a candidate for a nonjudicial appointive office, she need not resign
her judgeship, provided that she complies with all other provisions of the CJC.

F. APPLICATION OF THE CODE OF JUDICIAL CONDUCT

In jurisdictions that adopt the CJC, it applies to all persons who perform judicial functions,
including magistrates, court commissioners, and referees. Part-time and retired judges
are exempt from many, but not all, of the provisions that restrict outside activities and
political activities.