Different roles of lawyers

Question 1

A lawyer whose client is a corporation owes a duty of loyalty to:

Answer 1

her duty is to the corporation itself only

Question 2

If the lawyer for an organization learns that an employee has violated a law, the violation might be imputed to the organization, and the violation is likely to cause substantial injury to the organization, the lawyer must do the following first:

Answer 2

Report the violation to a higher authority at the organization (or the highest authority, e.g., the board of directors); however, she may choose not to report it if she reasonably believes that the organization’s best interests do not require the violation to be reported

Question 3

Under the Sarbanes-Oxley Act, if a securities lawyer becomes aware of credible evidence that her client is ( ) a federal or state securities law, she ( ) report the evidence to her client’s chief legal officer or chief executive officer.

Answer 3

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 or chief executive officer.

Note that 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.

Note that she does not have discretion to report it (she must, not may do so). The violation, however, needs to be material; a nonmaterial violation is not required to be reported.

Question 4

May a lawyer volunteer advice to a client?

Answer 4

Yes, a lawyer may volunteer advice, but is not obligated to

Question 5

Is “puffing” (i.e., exaggerating) of a client’s position during negotiations allowed?

Answer 5

Yes, unless the statement is considered a statement of material fact

Question 6

If a lawyer is serving as a third party arbitrator, do the legal ethics rules apply?

Answer 6

Yes, the legal ethics rules apply in addition to other codes of conduct for arbitrators

Question 7

In a criminal matter, is a prosecutor required to disclose evidence that tends to negate guilt?

Answer 7

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. This is true even if the defense could have discovered the evidence on its own.

Question 8

A lawyer for a corporation discusses a matter with the corporation’s employee and decides that the employee and the corporation have conflicting interests with respect to the matter. The lawyer should

Answer 8

Caution the employee that she represents the corporation, not the employee

Question 9

A lawyer representing a corporation learned that its vice president is violating bribery laws and that violation may be imputed to the corporation. The lawyer reported the violation to the organization’s highest authority, but the highest authority failed to take timely, appropriate action. The lawyer ( ) report the relevant information to appropriate persons outside of the organization.

Answer 9

May. he lawyer is not required to report the violation, nor is she prohibited from doing so

Question 10

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. If the chief legal officer concludes that a violation occurred, he must take all reasonable steps to get the client to make an appropriate response. However, if the securities lawyer believes that the chief legal officer did not obtain an appropriate response from the client, under the Sarbanes-Oxley Act, she

Answer 10

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.

Note that the next step is to report it to the board or one of the committees listed above, not the Securities and Exchange Commission.

Question 11

Is a lawyer allowed to give nonlegal advice to a client?

Answer 11

Yes, when the nonlegal advice is relevant to the client’s situation

Question 12

A lawyer may evaluate his client’s affairs for use by a third party only if:

Answer 12

if the lawyer reasonably believes that making the evaluation is compatible with the lawyer’s other responsibilities to the client.

There is no requirement that the client review the evaluation and consent in writing before the evaluation is provided to the third party. Nor is there is a requirement that the issue between the client and third party be undisputed.

Question 13

When a lawyer acts as a third party neutral (e.g., a mediator), is an attorney-client relationship formed with any of the parties?

Answer 13

No, and the lawyer must warn that the attorney-client privilege does not apply to communications between them

Question 14

A prosecutor’s failure to disclose evidence that would exculpate a criminal defendant deprives the defendant of

Answer 14

Failure to disclose material information may deprive the defendant of due process.

Question 15

The lawyer for an organization may represent both the organization and its officers provided that

Answer 15

provided that none of the represented officers signs the consent to the conflict on the corporation’s behalf

Question 16

lawyer representing an organization may not report a violation by that organization to an outside authority unless the following apply:

Answer 16

1) the lawyer already reported the violation to the organization’s highest authority;
2) the highest authority failed to take timely, appropriate action;
3) she reasonably believes that reporting is necessary to prevent substantial injury to the organization

Note that this is true even if the information she is reporting is protected by the duty of confidentiality. The lawyer cannot report the violation if the potential injury to the organization is not substantial.

Question 17

Under the Sarbanes-Oxley Act, a securities lawyer:

Answer 17

Cannot be held civilly liable for her compliance with the Sarbanes-Oxley Act

and may reveal confidential information to the SEC in order to prevent a client from committing perjury in an SEC matter.

Question 18

a lawyer’s duty as advisor?

Answer 18

a lawyer is required to give candid advice. This means that the lawyer should neither sugarcoat the advice nor delude the client

Question 19

A lawyer is hired by a client to evaluate the client’s affairs for use by a third party. Will the lawyer be liable to the third party for negligence in rendering the evaluation?

Answer 19

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. OR intentionally misrepresenting the client’s affairs

Question 20

Which statement is true regarding a lawyer’s role in negotiations?

Answer 20

A lawyer may “puff” his client’s position with statements that are not considered statements of material fact

Question 21

Can a lawyer who has served as a third party neutral (e.g., a mediator) thereafter represent any of the parties involved in the matter?

Answer 21

Only if informed consent, confirmed in writing, is given by all parties. his is true even though an attorney-client relationship was never formed when the lawyer acted as a third party neutral. It is not enough that the new client gives informed consent—all parties must provide such consent.

Question 22

At the criminal sentencing stage, is a prosecutor required to disclose mitigating information known to the prosecutor?

Answer 22

Yes, unless relieved of this duty by a protective order from the court

Question 23

The rules of confidentiality apply to information gained during the evaluation for third party, but where disclosure would serve the client’s interests, the lawyer is impliedly

Answer 23

authorized to disclose the information.

Question 24

When a lawyer has been asked to evaluate a client’s affairs for a third party, and the lawyer knows or should know that the evaluation will materially harm the client, the lawyer must

Answer 24

obtain the client’s informed consent before making the evaluation.

Question 25

” A prosecutor also must take reasonable care to prevent investigators, police, employees, and others assisting in a case from

Answer 25

making statements that violate these rules.

Question 26

A prosecutor must promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a defendant was wrongly convicted. This is true even if the conviction occurred in a different

Answer 26

jurisdiction. (Additionally, if the conviction occurred in the prosecutor’s own jurisdiction, and the prosecutor knows of clear and convincing evidence that the defendant was innocent, the prosecutor must actually seek to remedy the conviction.)

Question 27

When a lawyer appears on behalf of a client before a legislative body or administrative agency, the lawyer must disclose

Answer 27

that she is acting in a representative capacity (not on her own behalf), but she isn’t required to identify the client.

Question 28

he authority to report to outsiders does not apply to a lawyer who is

Answer 28

hired by the organization to investigate an alleged violation of law or to defend the organization or its constituents against a claimed violation of law.