Advocate

Question 1

Rule 3.3(a) Candor Toward the Tribunal

Answer 1

Candor Toward the Tribunal

(1) A lawyer must not knowingly make false statements or fail to correct false material facts or law to a court.

(2) Must disclose controlling adverse legal authority not presented by opposing counsel.

(3) Cannot offer evidence known to be false; if later discovered false, must take reasonable steps to correct it, possibly including disclosure.

Question 2

Rule 3.3(b) Candor Toward the Tribunal

Answer 2

Candor Toward the Tribunal

(b) If someone is committing fraud/criminal conduct in a proceeding, the lawyer must take reasonable remedial measures.

Question 3

Rule 3.3(c) Candor Toward the Tribunal

Answer 3

Candor Toward the Tribunal

(c) Duties in (a) and (b) continue until the proceeding ends, even if it means breaking confidentiality.

Question 4

Rule 3.3(d) Candor Toward the Tribunal

Answer 4

Candor Toward the Tribunal

(d) In ex parte hearings, the lawyer must disclose all material facts, even unfavorable ones.

Question 5

Rule 3.1

Answer 5

Meritorious Claims and Contentions

A lawyer must not pursue or defend a case without a reasonable basis in law and fact.

It is okay to make good faith arguments for changing or extending the law.

In criminal cases or when liberty is at stake, lawyers can require the prosecution to prove every element.

Question 6

Rule 3.2

Answer 6

Expediting Litigation

Lawyers must try to move cases forward efficiently while still protecting their client’s interests.

Question 7

Rule 3.4(a)

Answer 7

Fairness to Opposing Party and Counsel

(a) Don’t obstruct access to evidence or destroy it.

Question 8

Rule 3.4(b)

Answer 8

Fairness to Opposing Party and Counsel

(b) Don’t falsify evidence or help witnesses lie or break the law.

Question 9

Rule 3.4(c)

Answer 9

Fairness to Opposing Party and Counsel

(c) Don’t knowingly break court rules unless openly challenging them.

Question 10

Rule 3.4(d)

Answer 10

Fairness to Opposing Party and Counsel

(d) Don’t abuse discovery.

Question 11

Rule 3.4(e)

Answer 11

Fairness to Opposing Party and Counsel

(e) Don’t bring up irrelevant or inadmissible evidence or give personal opinions at trial.

Question 12

Rule 3.4(f)

Answer 12

Fairness to Opposing Party and Counsel

(f) Don’t ask someone to withhold information unless they’re related to the client and it won’t hurt them.

Question 13

Rule 3.5(a)

Answer 13

Impartiality and Decorum of the Tribunal

(a) Don’t improperly influence officials.

Question 14

Rule 3.5(b)

Answer 14

Impartiality and Decorum of the Tribunal

(b) Don’t communicate ex parte unless allowed by law or court order.

Question 15

Rule 3.5(c)

Answer 15

Impartiality and Decorum of the Tribunal

(c) Don’t contact jurors after trial if prohibited or if they object.

Question 16

Rule 3.5(d)

Answer 16

Impartiality and Decorum of the Tribunal

(d) Don’t disrupt court proceedings.

Question 17

Colo. RPC 3.5

Answer 17

Impartiality and Decorum of the Tribunal

Communication with jurors is also banned if intended to demean or criticize them.

Ex parte communication is allowed if initiated by a judge acting within their authority.

Question 18

Rule 3.7(a)

Answer 18

Lawyer as Witness

(a) A lawyer can’t be both advocate and necessary witness unless:

(1) The issue is uncontested

(2) It’s about the lawyer’s services in the case

(3) Removing the lawyer would seriously harm the client

Question 19

Rule 3.7(b)

Answer 19

Lawyer as Witness

(b) Another lawyer in the same firm can still act as advocate unless conflicts apply.

Question 20

Rule 3.6(a)

Answer 20

Trial Publicity

(a) A lawyer involved in a case must not make public statements likely to materially prejudice the proceeding.

Question 21

Rule 3.6(b)

Answer 21

Trial Publicity

(b) Lawyers may share basic public info (e.g., charges, public record info, litigation updates, warnings of harm). Criminal cases allow more, including info on arrest and the accused.

Question 22

Rule 3.6(c)

Answer 22

Trial Publicity

(c) Lawyers may respond to prejudicial publicity if necessary to protect their client, but only with minimal and appropriate statements.

Question 23

Rule 3.6(d)

Answer 23

Trial Publicity

(d) Other lawyers in the firm/government agency cannot make prohibited statements.

Question 24

Rule 3.8(a)

Answer 24

Special Responsibilities of a Prosecutor

(a) Only bring charges supported by probable cause.

Question 25

Rule 3.8(b)

Answer 25

Special Responsibilities of a Prosecutor (b) Ensure the accused understands their right to counsel.

Question 26

Rule 3.8(c) Special Responsibilities of a Prosecutor

Answer 26

Special Responsibilities of a Prosecutor (c) Don’t seek waivers of important rights from unrepresented people.

Question 27

Rule 3.8(d)

Answer 27

Special Responsibilities of a Prosecutor (d) Disclose all evidence that may help the defense or affect sentencing.

Question 28

Rule 3.8(e) Special Responsibilities of a Prosecutor

Answer 28

Special Responsibilities of a Prosecutor (e) Don’t subpoena lawyers unless necessary and lawful.

Question 29

Rule 3.8(f)

Answer 29

Special Responsibilities of a Prosecutor (f) Avoid public comments that increase condemnation of the accused.

Question 30

Rule 3.8(g)

Answer 30

Special Responsibilities of a Prosecutor (g) If new credible evidence suggests a wrongful conviction, disclose and investigate.

Question 31

Rule 3.8(h) Special Responsibilities of a Prosecutor

Answer 31

Special Responsibilities of a Prosecutor (h) If clear and convincing evidence shows someone was wrongfully convicted, seek to remedy it.

Question 32

Colo. RPC 3.8(d) Special Responsibilities of a Prosecutor

Answer 32

Special Responsibilities of a Prosecutor (d) Requires disclosure of evidence that may impact guilt, sentencing, or plea decisions, regardless of admissibility. Prosecutors must actively seek such info and cannot delay disclosure to gain plea advantage.

Question 33

Colo. RPC 3.8(g) Special Responsibilities of a Prosecutor

Answer 33

Special Responsibilities of a Prosecutor (g) If new, credible, material evidence shows reasonable probability of innocence, prosecutors must disclose and, if in their jurisdiction, move for appointed counsel.

Question 34

Colo. RPC 3.8(h) Special Responsibilities of a Prosecutor

Answer 34

Special Responsibilities of a Prosecutor (h) If clear and convincing evidence proves wrongful conviction in their court, prosecutors must act to set aside the conviction.

Question 35

A man was on trial for robbing a bank. At trial, a bank customer stated that he had identified the man in a police lineup. The prosecutor knew that the customer had first identified another person in the police lineup. However, because this information was unlikely to lead to the man’s acquittal and because the defendant’s counsel had made no pretrial discovery request to obtain this information, the prosecutor did not tell defense counsel about the prior identification. Is the prosecutor subject to discipline under the Model Rules of Professional Conduct? A Yes, because the prior identification tended to negate the defendant’s guilt. B Yes, because the police lineup was conducted by government officials. C No, because the defendant’s counsel made no pretrial discovery request for the information. D No, because the information was unlikely to lead to an acquittal.

Answer 35

A Yes, because the prior identification tended to negate the defendant’s guilt. Answer option A is correct. Under Model Rule 3.8(d), a prosecutor must “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused.” Model Rules of Prof’l Conduct r. 3.8(d) (Am. Bar Ass’n 2016). Therefore, the prosecutor was required to give the defense counsel the information regarding the prior identification. Answer options C and D are necessarily incorrect for that reason. Answer option B is incorrect because whether the police lineup was conducted by government officials is irrelevant to whether the prior identification tends to negate the defendant’s guilt.

Question 36

A prosecutor had charged a defendant with attempted murder and was preparing for trial. The defendant claimed that, at the time of the murder, he had been meeting with his business lawyer in the defendant’s business office to review quarterly statements. The defendant had since lost his business and had ended his relationship with the lawyer on bad terms. In a voluntary interview, the lawyer had told the prosecutor that the lawyer could not remember exactly when the meeting had ended, but that to the best of the lawyer’s recollection it had wrapped up at 12:30 p.m. Under the prosecutor’s theory of the case, this left the defendant with sufficient time to reach the alleged murder location. Former employees at the defendant’s business and the office’s keycard-entry system also established that the defendant had left the office at 12:30 p.m. The prosecutor subpoenaed the business lawyer to testify about the lawyer’s recollections of the meeting’s timing. Under the Model Rules of Professional Conduct, is the prosecutor subject to discipline for subpoenaing the business lawyer? A Yes, because an attorney may not subpoena another lawyer to testify in a judicial proceeding. B Yes, because the evidence could have been obtained through other means. C No, because the business lawyer no longer represented the defendant. D No, because the information the prosecutor sought from the business lawyer had been corroborated by other evidence.

Answer 36

B Yes, because the evidence could have been obtained through other means. Answer option B is correct. A prosecutor must not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about the lawyer’s past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected by any privilege, (2) the information sought is essential to the successful completion of an ongoing investigation or prosecution, and (3) there is no feasible alternative to obtain the information. Model Rules of Prof’l Conduct r. 3.8(e) (Am. Bar Ass’n 2016). Here, the business lawyer’s testimony about when his meeting with the defendant concluded is obtainable through at least two other sources: former employees of defendant’s business and the office’s keycard-entry system. Because there are feasible alternatives to obtain the information about when the meeting ended, the prosecutor would be subject to discipline under the Model Rules of Professional Conduct if he subpoenaed the business lawyer to provide evidence about when the meeting ended.Answer option A is incorrect because the prohibition against subpoenaing another lawyer applies: (1) to prosecutors only, not all lawyers, and (2) to testimony in a grand jury or other criminal proceeding only, not all types of judicial proceedings. See id. at r. 3.8(e). Answer option C is incorrect because the prohibition governs a subpoena to present evidence not only about current clients, but also about past clients. See id. Answer option D is incorrect because it reaches the wrong conclusion. The fact that the evidence the prosecutor seeks from the business lawyer is corroborated by other evidence is what makes the subpoena improper. Any time evidence is obtainable through other sources that corroborate a lawyer’s testimony about a current or past client, then there is a feasible alternative way to get the information, and a prosecutor may not subpoena a lawyer to provide this same information in a grand jury or other criminal proceeding.

Question 37

An attorney represented a company in a nonadjudicative proceeding before the state environmental-protection agency. The attorney knew of controlling law that was adverse to the company’s position, but no other party at the proceeding had mentioned it. The attorney chose not to reveal the adverse law to the agency. Ultimately, the agency made several decisions that hurt the company’s interests. Under the Model Rules of Professional Conduct, is the attorney subject to discipline for failing to disclose the adverse law? A Yes, because the attorney was required to disclose any adverse controlling law. B Yes, because the attorney did not achieve a favorable result for the company. C No, because the attorney would be held to the same standard as any other person appearing before a state agency. D No, because the rule requiring disclosure of adverse controlling law does not apply to nonadjudicative proceedings.

Answer 37

A Yes, because the attorney was required to disclose any adverse controlling law. Answer option A is correct. Under Model Rule of Professional Conduct 3.9, lawyers representing clients in a nonadjudicative proceeding must still conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. Model Rule 3.3(a)(2) requires a lawyer to disclose adverse legal authority. Here, the attorney is subject to discipline. The attorney failed to disclose adverse legal authority while representing the company in a nonadjudicative proceeding before the state’s environmental-protection agency. Answer option B is incorrect. Under Model Rule of Professional Conduct 3.9, lawyers representing clients in a nonadjudicative proceeding must still conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. Model Rule 3.3(a)(2) requires a lawyer to disclose adverse legal authority. Here, the attorney is not subject to discipline merely because he did not achieve a favorable result for the company. Rather, the attorney is subject to discipline because he failed to disclose adverse legal authority while representing the company in a nonadjudicative proceeding before the state’s environmental-protection agency. Answer option C is incorrect. Under Model Rule of Professional Conduct 3.9, lawyers representing clients in a nonadjudicative proceeding must still conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. Model Rule 3.3(a)(2) requires a lawyer to disclose adverse legal authority. The comment to Rule 3.9 notes that lawyers do not have an exclusive right to appear before nonadjudicative bodies. Nonetheless, the Model Rules hold lawyers to a standard that may not be applicable to nonlawyers. Therefore, although a nonlawyer would not have been required to disclose adverse authority, the attorney was still required to do so and is subject to discipline for failing to do so. Answer option D is incorrect. Under Model Rule of Professional Conduct 3.9, lawyers representing clients in a nonadjudicative proceeding must still conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. Model Rule 3.3(a)(2) requires a lawyer to disclose adverse legal authority. Here, the attorney is subject to discipline. The attorney failed to disclose adverse legal authority while representing the company in a nonadjudicative proceeding before the state’s environmental-protection agency.

Question 38

When is a claim frivolous under the Model Rules of Professional Conduct? A When a lawyer has not developed any evidence in support of his client’s case. B When a lawyer is reasonably certain his client will lose. C When a lawyer does not know of any existing law that supports his client’s case. D When a lawyer is unable to make a good faith argument on the merits of the client’s case.

Answer 38

D When a lawyer is unable to make a good faith argument on the merits of the client’s case. Answer option D is correct. Rule 3.1 of the Model Rules of Professional Conduct requires lawyers to “inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions.” See Comment 2, Model Rule of Professional Conduct 3.1. Answer option A is incorrect because the Model Rules acknowledge that lawyers may use discovery, after filing a claim, to develop evidence in support of their clients’ cases. Answer option B is incorrect because Model Rule 3.1 recognizes that claims are not frivolous “even though the lawyer believes that the client’s position ultimately will not prevail.” Id. Finally, answer option C is incorrect. Even if no current law affirmatively supports the client’s position, a lawyer may still make a good faith argument for the extension, modification, or reversal of existing law.

Question 39

A lawyer filed a personal injury claim against a store owner, on behalf of the lawyer’s client, who slipped, fell, and broke his ankle on icy pavement outside the owner’s store. The applicable city code clearly required the store owner to keep the pavement clear. However, the limitations period for personal injury actions in the jurisdiction is two years. The client suffered his injury three years before the lawyer filed the claim. A pre-filing review of the case law revealed that recent arguments to alter the limitations period for similarly situated personal injury plaintiffs were all unsuccessful. The lawyer was doubtful that his client’s claim would succeed because he had found cases that considered and rejected all of his client’s possible arguments on the limitations period. Did the lawyer comply with the Model Rules of Professional Conduct pertaining to filing meritorious claims? A Yes, because the lawyer can argue in good faith that the limitations period should be altered. B Yes, because the store owner clearly neglected his duty to keep the pavement clear of ice. C No, because the lawyer has no good-faith argument for the extension, modification, or reversal of the limitations period. D No, because the client is likely to lose his claim as time-barred.

Answer 39

C No, because the lawyer has no good-faith argument for the extension, modification, or reversal of the limitations period. Answer option C is correct. A lawyer has a meritorious claim if he has informed himself about the facts of his client’s case and the applicable law, and determined that he can make good-faith arguments in support of his client’s position. See Comment 2, Model Rule of Professional Conduct 3.1. Here, the lawyer’s research revealed authority that is contrary to every position his client might take. The lawyer cannot make a good-faith argument for the extension, modification, or reversal of the limitations period. Therefore, the lawyer violated Model Rule 3.1 in filing a frivolous time-barred personal injury action. Answer option A is necessarily incorrect for the same reason. Answer option B is incorrect. The store owner’s breach of his duty to clear the pavement does not resolve the insurmountable statute of limitations problem with the client’s personal injury claim. Finally, answer option D is incorrect. The action is frivolous not because the lawyer believes his client will lose; actions may still be meritorious even if a lawyer believes his client will not ultimately prevail. Here, the action is frivolous because the lawyer can advance no good-faith argument that the client’s claim is not time-barred.

Question 40

A lawyer filed a price-fixing suit under the antitrust laws in federal district court. The defendant moved to dismiss the complaint for improper venue. While the lawyer had not researched the venue issue before filing the complaint, the lawyer was still able to make several good-faith arguments in support of proper venue. Ultimately, the district court judge ruled for the defendant and dismissed the complaint. Did the lawyer comply with the Model Rules of Professional Conduct pertaining to filing meritorious claims? A Yes, because the lawyer was able to argue in good faith that venue was proper. B Yes, because the complaint was dismissed for technical reasons that did not concern the merits of the client’s price-fixing case. C No, because the lawyer’s complaint was dismissed. D No, because the lawyer should have researched the venue issue before filing.

Answer 40

A Yes, because the lawyer was able to argue in good faith that venue was proper. Answer option A is correct. The lawyer was able to make several good-faith arguments in opposing the motion to dismiss for lack of venue. The ultimate failure of those arguments does not render the price-fixing claim frivolous. Therefore, the lawyer complied with Model Rule of Professional Conduct 3.1 in filing the complaint. Answer option B is incorrect. Model Rule 3.1’s requirement that lawyers refrain from filing frivolous claims applies to all aspects of the claim, not just the merits of the client’s substantive position. Answer option C is incorrect. The fact that a claim fails, even at an early stage in the litigation, does not mean it was frivolous. Finally, answer option D is incorrect. While the lawyer certainly should have researched the venue issue before filing the complaint, the lawyer was nevertheless able to make several good-faith arguments in support of proper venue.

Question 41

A lawyer represented a client charged with burglary. The state’s case against the client was largely circumstantial. The state had a recording of the burglary in progress, but the offender in the video was wearing a full-face mask and could not be positively identified. However, the lawyer observed items stolen in the burglary in his client’s possession. Prior to trial, the state offered a reduced sentence in exchange for a guilty plea. The client told the lawyer he would not accept the deal. Under the Model Rules of Professional Conduct, may the lawyer proceed with trial and force the state to prove each element of the burglary charge? A Yes, because the state’s case is based on circumstantial evidence. B Yes, because the lawyer is constitutionally required to put the state to its burden of proof. C No, because the lawyer cannot argue in good faith that his client is innocent as required by the Model Rules. D No, because a lawyer who suspects his client is guilty must accept the state’s settlement offer.

Answer 41

B Yes, because the lawyer is constitutionally required to put the state to its burden of proof. Answer option B is correct. When representing a criminal defendant or other client facing incarceration, a lawyer may defend by requiring that every element of the case be established. When the lawyer’s ethical obligation to make meritorious arguments conflicts with his constitutional obligation to advocate zealously on behalf of a client in a criminal proceeding, the constitutional obligations control. Therefore, the lawyer in this case may still insist that the state prove every element of its case, notwithstanding the lawyer’s suspicion that his client is guilty. Answer option C is necessarily incorrect for the same reason. Answer option A is incorrect because a lawyer representing a criminal defendant is always entitled to insist that the state prove each and every element of its case, regardless of the strength of the state’s evidence. Answer option D is incorrect because the lawyer may not accept the state’s plea deal if the client has instructed him not to. Model Rule 1.2(a) requires a lawyer to obey the client’s wishes on whether or not to accept a settlement offer.

Question 42

Under the Model Rules of Professional Conduct, when does a lawyer’s duty to correct a false statement of material fact made to a tribunal end? A At the conclusion of the representation. B At the client’s death. C At the lawyer’s death. D At the conclusion of the proceeding.

Answer 42

D At the conclusion of the proceeding Answer option D is correct. Rule 3.3(c) of the Model Rules of Professional Conduct states that a lawyer’s duty of candor to the tribunal continues until the conclusion of the proceeding. Comment 13 clarifies that a proceeding concludes when final judgment has been affirmed on appeal or the time for review has passed. Answer options A, B, and C are necessarily incorrect for the same reason.

Question 43

Under the Model Rules of Professional Conduct, when must a lawyer disclose known adverse legal authority? A When the authority is directly adverse to the client’s position. B When the authority is directly adverse to the client’s position and opposing counsel has not disclosed it. C When the authority is from the controlling jurisdiction, is directly adverse to the client’s position, and opposing counsel has not disclosed it. D When the authority is published and from the controlling jurisdiction, is directly adverse to the client’s position, and opposing counsel has not disclosed it.

Answer 43

C When the authority is from the controlling jurisdiction, is directly adverse to the client’s position, and opposing counsel has not disclosed it. Answer option C is correct. Rule 3.3(a)(2) of the Model Rules of Professional Conduct requires a lawyer to disclose to a tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the lawyer’s client and not disclosed by opposing counsel. Answer options A and B are incorrect because they state the lawyer’s duty to disclose adverse authority too broadly. Both answer options omit the requirement that the authority be issued in the controlling jurisdiction. Answer option A is also incorrect because it omits the requirement that the authority has not already been disclosed by opposing counsel. Answer option D is incorrect because it states the lawyer’s duty too narrowly. The Model Rules do not limit the lawyer’s duty to disclose to published legal authority. If the authority is issued in the controlling jurisdiction and directly contradicts the client’s position, then a lawyer must disclose it if opposing counsel does not, even if the authority is unpublished.

Question 44

A lawyer represented a plaintiff in a personal injury action arising out of a two-vehicle car crash. The lawyer had represented the client in a variety of matters over the previous 15 years. The lawyer reviewed the facts of the accident with his client, who claimed that the defendant driver had gone through a red light and caused the accident. The lawyer interviewed three witnesses to the accident, and all of them claimed that the light was green. The lawyer was concerned that the client was mistaken or lying about the red light. After he confronted the client with his concerns, the client persisted in his version of events and insisted upon testifying at trial. Do the Model Rules of Professional Conduct permit the lawyer to present his client’s testimony as evidence? A Yes, because a lawyer must obey a client’s decision on whether to testify. B Yes, because the lawyer does not know that his client’s testimony is false. C No, because the lawyer reasonably believes that the client’s testimony is false. D No, because the lawyer has no additional evidence supporting the client’s testimony that the light was red.

Answer 44

B Yes, because the lawyer does not know that his client’s testimony is false. Answer option B is correct. Rule 3.3(a)(3) of the Model Rules of Professional Conduct prohibits a lawyer from offering evidence that the lawyer knows to be false. Here, while the lawyer has suspicions about the truthfulness or accuracy of his client’s testimony, the lawyer does not know it is false. If, for example, the lawyer had video evidence from the intersection that definitively showed that the light was green, then Model Rule 3.3(a)(3) would prevent him from offering testimony from his client that the light was red. Answer option C is necessarily incorrect for the same reasons. Answer option A is incorrect because Model Rule 1.2(a) only requires a lawyer to obey his client’s decision to testify in a criminal matter. A lawyer is not required to obey his client’s decision to testify in a civil matter. Answer option D is incorrect because Model Rule 3.3(a)(3) does not require a lawyer to gather additional evidence supporting a client’s version of events in order to present it as evidence. While such additional corroborating evidence would make the client’s testimony more persuasive and should be presented if available, it is not required.

Question 45

A lawyer represented several passengers injured while riding a commuter train. One of the key issues in the case was the speed at which the train was traveling as it entered a turn. The lawyer deposed one of his clients who had sat in view of the conductor’s control panel that displayed the train’s speed. In her deposition, the client provided details about the display on the conductor’s control panel, the conductor’s appearance and demeanor, and the readout on the train’s speedometer. After the deposition, the lawyer reviewed photographs of the conductor after the accident, and realized that the client had described the conductor’s uniform inaccurately. Do the Model Rules of Professional Conduct require the lawyer to correct the false statement about the conductor’s uniform? A Yes, because a lawyer must correct any testimony that he later realizes is false. B Yes, because the client was providing testimony on a material issue in the case. C No, because the false statement occurred in a deposition and was not made to a tribunal. D No, because the statement is not material evidence.

Answer 45

D No, because the statement is not material evidence. Answer option D is correct. Rule 3.3 of the Model Rules of Professional Conduct requires a lawyer to correct material evidence that the lawyer later learns is false. Here, the point on which the client’s testimony was false, the appearance of the conductor’s uniform, is not a material issue in the case. Therefore, the lawyer is not required to correct the misstatement. If, for example, the client had inaccurately described the reading of the train’s speedometer, Model Rule 3.3 would require the lawyer to correct the misstatement, because the speed of the train is a material issue in the case. Answer option A is incorrect because it states the lawyer’s obligation to correct false statements too broadly. A lawyer is not required to correct any and all statements or evidence presented to the tribunal that he subsequently learns are false. Rather, the lawyer need only correct false statements or evidence that are material to the case. Answer option B is incorrect because, while the client’s testimony overall may have reached material issues in the case, the misstatement on the appearance of the conductor’s uniform did not. Finally, answer option C is incorrect. Comment 1 to Rule 3.3 states that the rule applies “when a lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.” Therefore, the rule requires a lawyer to take reasonable remedial measures upon learning that a client testifying in a deposition has offered evidence that is false.

Question 46

A lawyer represented a corporation as a defendant in a civil antitrust lawsuit brought by its competitor. The competitor alleged that the corporation and two others had conspired to fix prices in the rental car industry. About six months after the pleadings were filed, the lawyer overheard the corporation’s Chief Financial Officer (CFO) in a heated discussion about an aggressive tax deduction strategy. Upon further investigation, the lawyer learned that the corporation was illegally claiming a variety of corporate tax deductions. The lawyer does not represent the corporation on its tax matters. However, the lawyer had planned to offer key testimony in the antitrust proceeding from the CFO, who was responsible for the deductions strategy. However, the lawyer can keep the CFO off the witness stand and use other employees from the corporation who were not involved in the deductions strategy to establish the same facts. Do the Model Rules of Professional Conduct require the lawyer to disclose the tax fraud to the court presiding over his case? A Yes, because a lawyer must take reasonable remedial measures when he learns that a witness he had planned to offer in a proceeding before a tribunal is involved in criminal or fraudulent conduct. B Yes, because a lawyer must take reasonable remedial measures when he learns that a client he is representing before a tribunal is involved in criminal or fraudulent conduct. C No, because the tax fraud is not related to the antitrust proceeding. D No, because the lawyer can use different witnesses instead of the CFO in the antitrust proceeding.

Answer 46

C No, because the tax fraud is not related to the antitrust proceeding. Answer option C is correct. When a lawyer knows that a client he represents in an adjudicative proceeding is engaging in criminal or fraudulent conduct, he must take reasonable remedial measures, but only if the criminal or fraudulent conduct is related to the proceeding. See Model Rule of Professional Conduct 3.3(b). Here, the fraudulent tax deductions are not related to the civil price-fixing proceeding. Therefore, Model Rule 3.3 does not require the lawyer to take reasonable remedial measures, such as disclosing the tax fraud to the court presiding over the price-fixing case. Answer options A and B are incorrect for this same reason. They are also incorrect because each misstates the lawyer’s duty under Model Rule 3.3(b) to take reasonable remedial measures when he knows that a client he represents in an adjudicative proceeding intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding. The duty is not limited to planned witnesses (answer option A) or clients (answer option B). Rather, it applies when the lawyer knows that “a person,” client, witness, or otherwise, intends to engage in, is involved in, or has engaged in criminal or fraudulent conduct related to the proceeding. Answer option D is incorrect because the lawyer’s duty to take reasonable remedial measures does not hinge upon whether the person engaging in the criminal or fraudulent conduct will offer evidence in the proceeding or not.

Question 47

Which of the following is NOT one of the circumstances under which the Model Rules of Professional Conduct prohibit a lawyer from contacting jurors after discharge of the jury? A When contact is prohibited by law or court order. B When the juror does not want to be contacted. C When the contact involves misrepresentation, coercion, duress, or harassment. D When the jury had been sequestered due to the high profile nature of the case.

Answer 47

D When the jury had been sequestered due to the high profile nature of the case. Answer option D is correct. A lawyer may contact a former juror after the jury has been discharged even if the jury had been sequestered. Answer options A, B, and C are incorrect because they list the three circumstances under which Model Rule 3.5(c) prohibits a lawyer from communicating with a juror after the jury has been discharged.

Question 48

A prosecutor litigated a high-profile murder case against a defendant accused of murdering his entire family. The trial garnered so much media attention that the judge ordered jurors to be sequestered. At the end of a lengthy trial, the defendant was acquitted. The judge polled the jury before discharging them, and each of the jurors stated that she did not want to be contacted by counsel. A year later, one of the jurors published a tell-all book detailing the jury’s deliberations. Do the Model Rules of Professional Conduct permit the prosecutor to contact the juror who wrote the book? A Yes, because the juror waived any objection to being contacted when she published the book. B Yes, because a lawyer may contact a former juror when more than a year has passed since the jury was discharged. C No, because the juror said she did not want to be contacted. D No, because the lawyer failed to preserve his right to contact the juror when the judge polled the jury.

Answer 48

C No, because the juror said she did not want to be contacted. Answer option C is correct. Rule 3.5(c)(2) of the Model Rules of Professional Conduct prohibits a lawyer from contacting a juror after the jury is discharged when the juror “has made known to the lawyer a desire not to communicate.” Here, the juror told the judge that she did not want to be contacted by the lawyers in the case. Her publication of a book does not waive her right not to be contacted by the lawyers. The Model Rules prohibit the lawyer from contacting the juror under these circumstances. Answer option A is necessarily incorrect for this same reason. Answer option B is incorrect because Model Rule 3.5(c) does not limit the time during which a lawyer is prohibited from contacting a former juror. Finally, answer option D is incorrect. Model Rule 3.5(c) does not require a lawyer to state his intention to contact former jurors or otherwise preserve his right to do so. Rather, it sets out three instances in which lawyers are prohibited from contacting former jurors after discharge. Absent any state or court rules to the contrary, a lawyer is permitted to contact a former juror after the jury is discharged if none of Model Rule 3.5(c)’s exceptions apply.

Question 49

A lawyer representing the plaintiff in a patent infringement lawsuit was deposing the alleged infringer’s expert witness. Opposing counsel objected to the vast majority of the lawyer’s questions. Each of opposing counsel’s objections had a basis in the question that the lawyer had asked. The lawyer estimated that opposing counsel’s conduct lengthened what should have been a five-hour deposition to the maximum permissible seven hours. The governing jurisdiction has adopted the approach taken in the Model Rules of Professional Conduct for lawyer conduct intended to disrupt a tribunal. In a subsequent disciplinary proceeding, which of the facts above most strongly supports the bar disciplinary commission’s conclusion that opposing counsel did NOT violate the state’s rules for conduct intended to disrupt a tribunal? A Each of opposing counsel’s objections had a valid basis. B The deposition was not a proceeding before a tribunal. C The deposition was still completed within the time permitted by the rules. D The objections only lengthened the deposition, but did not cause it to come to a halt.

Answer 49

A Each of opposing counsel’s objections had a valid basis. Answer option A is correct. Rule 3.5(d) of the Model Rules of Professional Conduct forbids a lawyer from engaging in conduct intended to disrupt a tribunal. Here, however, the opposing counsel’s objections, while frequent, always had a basis in the question that the lawyer had just asked. This fact strongly supports the disciplinary commission’s finding that the opposing counsel did not intend to disrupt the proceeding, but was instead acting as a zealous advocate for her client. Answer option B is incorrect. Comment 5 to Model Rule 3.5 states that “[t]he duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition.” Answer option C is incorrect. The effects of a lawyer’s conduct might be relevant in showing whether the conduct was intended to disrupt the tribunal. However, the fact that a deposition was interrupted but still completed within the time permitted by the rules is not as strongly supportive of the commission’s conclusion as the fact that the opposing counsel’s objections were all validly based in the lawyer’s questions. A delay caused by an attorney within a deposition’s normal timeframe could still be an intentional disruption, in violation of the rules, where there was no valid basis for the delay.Answer option D is incorrect. The plain language of Model Rule 3.5(d) prohibits conduct “intended to disrupt” a tribunal. Actual disruption of the tribunal is not required to violate the Model Rule. Conversely, a lawyer’s conduct might actually disrupt the tribunal but not violate Model Rule 3.5(d), because it was not intended to be disruptive. For example, objections interposed during deposition or in-court testimony would obviously disrupt the proceedings to a certain extent. But the fact that the proceedings halt temporarily to address a lawyer’s objection does not mean the lawyer has violated Model Rule 3.5(d).

Question 50

A lawyer was defending a manufacturer in a products liability action. The lawyer was preparing a reply brief in support of his motion for summary judgment. The jurisdiction placed a 10-page limit on all reply briefs. Try as he might, the lawyer could not cut his reply brief to fewer than 12 pages. Without contacting opposing counsel first, the lawyer called the judge’s chambers to request an extension of the governing page limit. Which of the following facts, if true, best supports the position that the lawyer’s conduct was NOT an impermissible ex parte communication? A The lawyer only spoke to the judge about the page limit for his brief, not about any substantive matters. B The lawyer left a message stating his request on the judge’s voicemail, but did not reach the judge personally. C The local court rules state that the court must approve all overlength briefs, even if opposing counsel has consented. D The judge’s standing order instructs lawyers to “contact chambers directly for extensions of fewer than five pages, which will be granted or denied without consultation with opposing counsel.”

Answer 50

D The judge’s standing order instructs lawyers to “contact chambers directly for extensions of fewer than five pages, which will be granted or denied without consultation with opposing counsel.” Answer option D is correct. Model Rule 3.5(b) prohibits lawyers from communicating with a judge outside of opposing counsel’s presence, unless authorized to do so by law or court order. Here, the judge’s standing order appears to permit lawyers to contact chambers ex parte for extensions of fewer than five pages, which is what the lawyer is seeking. The language of answer option D’s standing order is therefore the fact that most strongly supports the position that the lawyer did not violate Model Rule 3.5(b).Answer option A is incorrect. Absent a local law or rule to the contrary, Model Rule 3.5(b) prohibits ex parte communications on any topic and includes communications on procedural matters like page limits. Answer option B is incorrect. The voicemail left for the judge is still a communication made outside opposing counsel’s presence. Ex parte communication does not require in-person, synchronous contact. For example, a lawyer may communicate ex parte with a judge by submitting an email to the judge and failing to copy opposing counsel on it. Answer option C is incorrect. The fact that court approval is required for overlength briefs does not mean that the local rules permit ex parte communication for this purpose. A lawyer can gain court approval by filing a motion on the docket, which would communicate with both the judge and opposing counsel.

Question 51

Assuming the person’s interests will not be adversely affected by withholding the information, whom, if anyone, may a lawyer ask to withhold relevant information from another party? A Only clients. B Only clients and their relatives, employees, and agents. C Only clients and their relatives, friends, employees, and agents. D A lawyer may never ask anyone to refrain from voluntarily giving relevant information to another party.

Answer 51

B Only clients and their relatives, employees, and agents. Answer option B is correct. Rule 3.4(f) of the Model Rules of Professional Conduct prohibits a lawyer from asking someone other than a client to refrain from giving relevant information to another party, unless the person is the client’s relative, employee, or other agent, and the lawyer reasonably believes that the person’s interests will not be adversely affected by withholding the information. Answer options A, C, and D are necessarily incorrect for this reason.

Question 52

When does a lawyer’s obligation to refrain from altering, destroying, or concealing information begin under the Model Rules of Professional Conduct? A Whenever he or his client controls information that has potential evidentiary value. B Only once a complaint is filed. C Only once discovery begins. D Only once a trial date is set

Answer 52

A Whenever he or his client controls information that has potential evidentiary value. Answer option A is correct. Rule 3.4(a) of the Model Rules of Professional Conduct prohibits a lawyer from obstructing another party’s access to evidence or unlawfully altering, destroying or concealing documents or other material having potential evidentiary value. Comment 2 to Rule 3.4 clarifies that “[a]pplicable law in many jurisdictions makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or in one whose commencement can be foreseen.” Thus, the lawyer’s duty under Model Rule 3.4(a) can arise even before litigation is filed. Answer options B, C, and D are necessarily incorrect for these reasons. Note that lawyers should consult the applicable law in their jurisdictions regarding the preservation of evidence and potential evidence, and counsel their clients accordingly on the appropriate document and electronic retention policies.

Question 53

A lawyer represented a defendant manufacturer in a products liability class action. As part of her client’s defense, the lawyer hired an engineering expert to review her client’s product development records and test its allegedly defective product. The expert prepared a written report and gave deposition testimony. The lawyer reimbursed the expert for her time at a quoted hourly rate. The lawyer also signed a written agreement that promised to pay the expert a $15,000 bonus if the manufacturer prevailed in the matter. Did the lawyer violate the Model Rules of Professional Conduct, as they are applied in most jurisdictions, by making the $15,000 payment agreement with the expert witness? A Yes, because in most jurisdictions a lawyer may never pay a witness. B Yes, because in most jurisdictions a lawyer may not pay an expert witness a contingent fee. C No, because in most jurisdictions a lawyer is permitted to pay an expert witness a contingent fee. D No, because in most jurisdictions a lawyer is only prohibited from making the expert’s payment contingent upon the substance of the expert’s testimony.

Answer 53

B Yes, because in most jurisdictions a lawyer may not pay an expert witness a contingent fee. Answer option B is correct. Rule 3.4(b) of the Model Rules of Professional Conduct prohibits a lawyer from offering an inducement to a witness that is prohibited by law. As Comment 3 observes, in most jurisdictions the common law rule is that it is improper to pay an expert witness a contingent fee. But in general, it is not unlawful to compensate an expert witness for her time on terms permitted by law. Here, paying the expert’s hourly rate for her work is not unlawful. However, the $15,000 bonus, which would be paid if the manufacturer prevailed, is an unlawful contingent fee to the expert in most jurisdictions. Answer option C is necessarily incorrect for this same reason. Answer option A is incorrect because, in addition to the rules above related to compensating expert witnesses, a lawyer may also pay a fact witness’s expenses. Finally, answer option D is incorrect. While it is true that the expert fee agreement here did not expressly make payment of the fee contingent on the specific contents of the expert’s testimony, most jurisdictions do not set the Model Rule 3.4 bar that low. A contingent-fee agreement to pay an expert additional compensation if the result is in the client’s favor, like the agreement here, is unlawful under the common law rule in most jurisdictions.

Question 54

A lawyer represented a large corporation for all its litigation needs. Over a six-month period, the corporation received numerous customer emails complaining that its product was not performing as advertised. The corporation had a two-year retention policy for physical documents, but no policy for emails or electronic files. During the six-month period when the corporation was receiving a high volume of complaints, the corporation’s CEO asked the lawyer if the company had to do anything special with its emails, including the customer complaint emails. The lawyer said no. The corporation’s IT department wiped its servers every other week and did not retain any backups. Nearly two years later, the corporation was served with a complaint for false advertising in connection with the product that had received so many consumer complaints. A majority of the customer complaint emails had been erased from the corporation’s servers by that point, pursuant to the IT department’s regular practices. Did the lawyer comply with the Model Rules of Professional Conduct? A Yes, because some of the customer emails were still in existence when the corporation was served with the complaint. B Yes, because the lawyer was not directly responsible for the destruction of the emails. C No, because the lawyer counseled the corporation that it did not need to preserve the customer complaint emails. D No, because the lawyer was required to advise the corporation to preserve all emails for at least one year.

Answer 54

C No, because the lawyer counseled the corporation that it did not need to preserve the customer complaint emails. Answer option C is correct. Among other conduct, Rule 3.4(a) of the Model Rules of Professional Conduct prohibits a lawyer from counseling another person to unlawfully destroy a document or other material having potential evidentiary value. This prohibition applies with equal force to physical and electronic materials. See Comment 2, Model Rule of Professional Conduct 3.4 (“Paragraph (a) applies to evidentiary material generally, including computerized information.”) Comment 2 also clarifies that applicable law in many jurisdictions “makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen.” The lawyer’s advice to the client that it did not need to retain or otherwise preserve the emails, including the customer complaint emails, did not comply with Model Rule 3.4(a). Pursuant to his advice, the corporation destroyed most of the emails, even though at the time, in light of the numerous customer complaints, litigation over that particular product was arguably foreseeable.Answer option A is incorrect. Model Rule 3.4(a) is violated when any evidence or material having any potential evidentiary value is destroyed unlawfully. The fact that not all of the evidence was destroyed does not mean the lawyer’s advice complied with Model Rule 3.4(a). Answer option B is incorrect. Model Rule 3.4(a) is violated not only when the lawyer is the destroyer of evidence or material having potential evidentiary value. Rather, the Rule is violated also when a lawyer counsels another person to do the destroying, as happened here. Answer option D is incorrect. The Model Rules do not impose a specific timeframe for preserving computerized material having potential evidentiary value. In general, lawyers should advise clients to have retention policies in place that specify how long and in what form electronic information will be retained. Most jurisdictions have well-developed bodies of law for when litigation becomes foreseeable and a duty to preserve computerized material beyond a period specified in the retention policy might apply.

Question 55

A lawyer represented a restaurant as the plaintiff in a trademark infringement action against a defendant restaurant using a confusingly similar trademark. The defendant restaurant had opened 20 years earlier, but had rebranded itself using the allegedly similar trademark 10 years after it opened (which was also 10 years before the lawsuit). The lawyer suspected that customers of the defendant restaurant had complained about being disappointed with their experience because they thought they were going to visit the plaintiff restaurant. Which of the following discovery requests from the lawyer to the defendant restaurant best complies with the Model Rules of Professional Conduct? A All customer complaints for the past 20 years. B All customer complaints mentioning the plaintiff restaurant for the past 20 years. C All customer complaints for the past 10 years. D All customer complaints mentioning the plaintiff restaurant for the past 10 years.

Answer 55

D All customer complaints mentioning the plaintiff restaurant for the past 10 years. Answer option D is correct. Rule 3.4(d) of the Model Rules of Professional Conduct prohibits a lawyer from making a frivolous discovery request. A discovery request can be frivolous for being overly broad. The discovery request in answer option D is the narrowest of the four options, and best tailored to reach the evidence the lawyer suspects he will find. It is limited to the time period when the defendant restaurant was using the alleged confusingly similar trademark, the last 10 years. It is also limited to the type of complaint the lawyer is seeking (complaints that name the plaintiff restaurant), instead of seeking all customer complaints. The discovery requests in answer options A, B, and C are each incorrect as overbroad. They are not as likely as answer option D to comply with a lawyer’s duty to refrain from frivolous discovery requests under Model Rule 3.4(d).

Question 56

When, if ever, do the Model Rules of Professional Conduct permit a lawyer to testify at a proceeding in which he is already serving as an advocate? A Only when the issue on which the lawyer testifies is uncontested. B Only when disqualification of the lawyer would work substantial hardship on the client. C Only when the testimony relates to the nature or value of legal services rendered in the case. D When the testimony is on an uncontested issue, when it relates to the nature or value of legal services rendered in the case, or when disqualification would work a substantial hardship on the client. E When the testimony is on an uncontested issue, when it relates to the nature or value of legal services rendered in the case, when disqualification would work a substantial hardship on the client, or when the testimony relates to the client’s competency. F A lawyer is never permitted to testify at a proceeding in which he is already acting as an advocate.

Answer 56

D When the testimony is on an uncontested issue, when it relates to the nature or value of legal services rendered in the case, or when disqualification would work a substantial hardship on the client. Answer option D is correct. Model Rule of Professional Conduct 3.7(a) defines three exceptions to the general rule that a lawyer may not testify at a proceeding in which he is also serving as an advocate. A lawyer may provide testimony on an uncontested issue, or on issues relating to the nature or value of legal services rendered in the case. A lawyer may also testify if disqualification of the lawyer would work a substantial hardship on the client, although this exception requires the lawyer to balance the interests of the client against the interests of the tribunal and opposing counsel. Answer options A, B, C, and E are necessarily incorrect for the above reasons.

Question 57

When a lawyer may need to testify as a necessary witness and also advocate in the same proceeding, what factors should he balance in determining whether his dual role will confuse the tribunal or prejudice opposing counsel under the Model Rules of Professional Conduct? A The nature of the case and the probability that the lawyer’s testimony will conflict with that of other witnesses. B The nature of the case and the importance and probable tenor of the lawyer’s testimony. C The nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. D The nature of the case, the importance and probable tenor of the lawyer’s testimony, the probability that the lawyer’s testimony will conflict with that of other witnesses, and the possibility that testifying will raise a conflict of interest with the lawyer’s client.

Answer 57

C The nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Answer option C is correct. Comment 4 to Model Rule of Professional Conduct 3.7 explains that, if the lawyer is not testifying on an uncontested issue, or on an issue relating to the nature or value of legal services provided in the case, the lawyer may still testify if his disqualification would work a substantial hardship on the client. This third exception to the general rule prohibiting lawyers from testifying and advocating in the same proceeding requires lawyers to balance the interests of their clients against those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party likely to suffer prejudice by the lawyer’s dual role depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even where there is a risk of prejudice to the tribunal or the opposing party, Comment 4 advises that “due regard” be given to the effect of any disqualification on the testifying lawyer’s client.Answer options A and B are each incorrect because they omit one of the factors named in Comment 4. Answer option D is incorrect because Comment 4 acknowledges that “[t]he conflict of interest principles stated in Rules 1.7, 1.9, and 1.10 have no application” to the balancing test.

Question 58

By what standard do the Model Rules of Professional Conduct evaluate whether a lawyer has made reasonable efforts to expedite litigation consistent with the interests of the client? A Whether any delay will unduly prejudice the interests of the client. B Whether the lawyer’s need for a proposed delay outweighs any prejudice the delay causes to the client and opposing party. C Whether the lawyer’s good-faith need for the proposed delay substantially outweighs any prejudice the delay causes to the client and opposing party. D Whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.

Answer 58

D Whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Answer option D is correct. Comment 1 to Model Rule of Professional Conduct 3.2 explains that, in evaluating whether a lawyer has made reasonable efforts to expedite litigation consistent with a client’s interests, “the question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.” Answer options A, B, and C are necessarily incorrect for the same reason.

Question 59

Do the Model Rules of Professional Conduct permit a lawyer to delay litigation on a client’s instruction for the purpose of benefiting the client financially? A Yes, because the delay would be consistent with the client’s interests. B Yes, because a lawyer is obligated to obey the client’s wishes on the timing of litigation. C No, because realizing a financial benefit from an otherwise improper delay in litigation is not a legitimate client interest. D No, because a lawyer may never delay ongoing litigation for any reason.

Answer 59

C No, because realizing a financial benefit from an otherwise improper delay in litigation is not a legitimate client interest. Answer option C is correct. Comment 1 to Model Rule of Professional Conduct 3.2 explains that “[r]ealizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.” Litigation conduct undertaken for no other substantial purpose than to cause delay violates the lawyer’s duty under Model Rule 3.2, even if it happens to benefit the lawyer’s client financially. Answer option A is necessarily incorrect for the same reason.Answer option B is incorrect. A proposed delay in litigation is not one of the subjects upon which a lawyer must obey a client’s wishes. In a civil matter, a lawyer must obey the client’s settlement decision. In a criminal matter, a lawyer must obey the client’s decision on entering a plea, testifying, and settling the matter. See Model Rule of Professional Conduct 1.2(a). Answer option D is incorrect because the Model Rules of Professional Conduct do permit a lawyer to delay the proceedings. Conduct delaying litigation is evaluated using a reasonableness standard: “the question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.” See Comment 1, Model Rule of Professional Conduct 3.2.

Question 60

A lawyer represented a corporation that was being sued for false advertising. The lawyer had sought extensions in responding to opposing counsel’s written discovery requests three different times in the past two months. The extensions were between two weeks and one month each. Opposing counsel consented to each extension. Most recently, on the day before a major witness from the corporation was scheduled to be deposed, the lawyer asked opposing counsel to push the deposition back by a month. The lawyer knew that the plaintiff company was small and found litigation expenses burdensome. The lawyer hoped that by extending the length of the litigation he might be able to force the plaintiff company to settle its claim on terms favorable to his client. Opposing counsel refused to reschedule the deposition, so the lawyer filed a motion with the court seeking an order forcing opposing counsel to reschedule. Has the lawyer complied with his duty under the Model Rules of Professional Conduct to expedite litigation consistent with the corporation’s interests? A Yes, because extending the length of the litigation makes it more likely that the plaintiff company will settle on terms favorable to the defendant corporation. B Yes, because the lawyer promptly filed a motion with the court to resolve the scheduling dispute with opposing counsel. C No, because opposing counsel did not agree to postpone the deposition. D No, because the lawyer sought delays for the purpose of frustrating the plaintiff’s attempts to obtain rightful redress or repose.

Answer 60

D No, because the lawyer sought delays for the purpose of frustrating the plaintiff’s attempts to obtain rightful redress or repose. Answer option D is correct. Model Rule of Professional Conduct 3.2 requires lawyers to make reasonable efforts to expedite litigation consistent with the interests of a client. In evaluating whether a lawyer has met his obligations under Model Rule 3.2, “the question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.” See Comment 1, Model Rule of Professional Conduct 3.2. A delay or other failure to expedite is not reasonable if it’s done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. Here, the lawyer’s repeated requests for extension had no substantial purpose other than to delay. The lawyer’s goal was to make the litigation last longer and thereby exhaust the opposing party’s resources in an attempt to extract a more favorable settlement. Because the lawyer’s extensions were undertaken to frustrate the plaintiff’s effort to obtain rightful redress, they do not comply with the lawyer’s obligations under Model Rule 3.2. Answer option B is incorrect for similar reasons. The fact that the lawyer promptly filed a motion with the court to resolve the scheduling dispute does not render his conduct compliant with Model Rule 3.2. Answer option A is incorrect for a similar reason. While the lawyer’s delays may ultimately prove favorable to the corporation’s interests, “[r]ealizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.” Answer option C is incorrect. Agreement or disagreement from either opposing counsel or the tribunal does not determine whether a lawyer has complied with his duty to expedite litigation under Model Rule 3.2. Comment 1 to Model Rule 3.2 explains that “[i]t is not a justification that similar conduct is often tolerated by the bench and the bar.”

Question 61

A lawyer represented a plaintiff corporation in a trademark infringement suit against a small company. The defendant company had few resources, and both the lawyer and the plaintiff corporation suspected that taking the case to trial would bankrupt the defendant. The lawyer thought that the defendant company would settle after a few months of expensive discovery. The lawyer and client discussed a strategy whereby they would take the maximum amount of time allowable under the Federal Rules of Civil Procedure and governing local rules to respond to defendant’s discovery requests and file court papers. Does the strategy comply with the lawyer’s duty to take reasonable steps to expedite litigation? A Yes, because any delays in litigation that serve the client’s interests are permissible under the Model Rules of Professional Conduct. B Yes, because taking advantage of the maximum time allowed for discovery does not violate the Model Rules, even if the lawyer’s purpose is to extend the litigation. C No, because the lawyer’s purpose is to extend the litigation. D No, because the client’s purpose in extending the litigation is to obstruct the company’s right to defend against the plaintiff’s claim.

Answer 61

B Yes, because taking advantage of the maximum time allowed for discovery does not violate the Model Rules, even if the lawyer’s purpose is to extend the litigation. Answer option B is correct. Here, the lawyer and client have not sought an extension of any applicable deadline. They have simply planned to take the maximum amount of time permissible under the governing law. The lawyer and client are entitled to use the time available to them under the governing law; taking the maximum amount of permissible time to respond to discovery requests and file papers with the court does not breach the lawyer’s duty to make reasonable efforts to expedite litigation consistent with the client’s interests under Model Rule 3.2. Answer options C and D are necessarily incorrect for the same reason. Any strategic delays, taken within the time periods allotted for a given action during litigation, are within the bounds of Model Rule 3.2 even if the lawyer’s or client’s purpose is to delay. Answer option A is incorrect. Model Rule 3.2 requires, in part, that a lawyer act in the client’s interests. However, the Rule does not sanction any and all delays taken at a client’s request or to benefit a client. When a lawyer seeks extensions of time with no other substantial purpose than to delay, even at the client’s request, he violates his duty to expedite litigation under Model Rule 3.2.

Question 62

A lawyer was representing a class of persons who claimed that they overpaid for plane tickets due to collusion in the airline industry. The class action had named three major airlines as defendants. The litigation had been ongoing for five years, and the lawyer had been deeply involved in every facet of discovery. Three days before trial was set to begin, the lawyer’s father died suddenly. The lawyer asked the court for a one-week postponement of the trial so that he could attend the services. Is the lawyer’s request for a postponement consistent with his duty under the Model Rules of Professional Conduct to make reasonable efforts to expedite litigation? A Yes, because the Model Rules permit a lawyer to seek a postponement for personal reasons. B Yes, because a lawyer may seek a postponement for any reason. C No, because postponement so close to the scheduled trial date will work a substantial hardship on the opposing party. D No, because a lawyer may not seek a postponement for personal reasons.

Answer 62

A Yes, because the Model Rules permit a lawyer to seek a postponement for personal reasons. Answer option A is correct. Model Rule of Professional Conduct 3.2 requires lawyers to make reasonable efforts to expedite litigation consistent with their clients’ interests. Comment 1 explains that “there will be occasions when a lawyer may properly seek a postponement for personal reasons.” Thus, the lawyer’s request for a brief postponement of the trial date so that he might attend the services for his father is permissible. Answer option D is necessarily incorrect for the same reason. Answer option B is incorrect because a lawyer’s ability to delay or postpone litigation is not unfettered. When a lawyer seeks an extension of time for no substantial reason other than to delay the proceedings, his conduct violates Model Rule 3.2. Answer option C is incorrect because the standard set out in Model Rule 3.2 does not rest on the prejudice a delay will cause to the opposing party. Rather, it focuses on the reasonableness of the delaying lawyer’s conduct, specifically, “whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.” See Comment 1, Model Rule of Professional Conduct 3.2.

Question 63

What does it mean for a lawyer to “knowingly” make a false statement of fact before a tribunal under the Model Rules of Professional Conduct? A The lawyer made the statement without first confirming its accuracy. B The lawyer made the statement with specific intent to deceive the tribunal. C The lawyer made the statement and knew that it was false when he made it. D The lawyer made the statement with careless disregard for the likelihood that it was false.

Answer 63

C The lawyer made the statement and knew that it was false when he made it. Answer option C is correct. Rule 3.3(a)(1) of the Model Rules of Professional Conduct (MRPC) prohibits a lawyer from knowingly making a false statement of fact or law to a tribunal. Model Rule 1.0(f) defines “knowingly” as denoting “actual knowledge of the fact in question.” Therefore, a lawyer knowingly makes a false statement of fact to a tribunal when he knows the statement is false when he says it. Note, however, that a lawyer’s knowledge of the falsity of a fact or other evidence in question can be inferred from the circumstances. See MRPC 3.3 cmt. 8.Answer options A and D are incorrect as overbroad. A lawyer’s failure to double-check a statement (answer option A) or more generally, a careless disregard that a statement is more likely false than true (answer option D) does not mean that the lawyer actually knew the statement was false when he made it. However, note that Comment 3 to Model Rule 3.3 observes that, when a lawyer’s statement to a tribunal is based on the lawyer’s personal knowledge, such as in an affidavit, it may only be properly made when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. A lawyer speaking on his own personal knowledge to a tribunal should therefore avoid carelessness and undertake a reasonably diligent investigation. However, advocates are not usually required to have personal knowledge of matters asserted in pleadings and most other documents prepared in litigation, as those ordinarily present assertions made based on a client’s or other witness’s personal knowledge, not the lawyer’s. See MRPC 3.3 cmt. 3.Answer option B is incorrect as overly narrow. A lawyer who makes a false statement with intent to deceive the tribunal clearly violates Model Rule of Professional Conduct 3.3. However, a lawyer lacking specific intent to deceive the tribunal may also violate his duty of candor in Model Rule of Professional Conduct 3.3; all that is required is that the lawyer have knowledge of the statement’s falsity when he makes it to the tribunal.

Question 64

When a lawyer makes a statement to a tribunal, and the lawyer subsequently learns that the statement was false, under what circumstances do the Model Rules of Professional Conduct require the lawyer to correct the statement? A Only when the false statement was a statement of fact. B Only when the false statement was a statement of law. C When the false statement was a statement of fact or law. D When the false statement was a material statement of fact or law.

Answer 64

D When the false statement was a material statement of fact or law. Answer option D is correct. Rule 3.3(a)(1) of the Model Rules of Professional Conduct prohibits a lawyer from knowingly failing to correct a false statement of material fact or law previously made to the tribunal by the lawyer. Answer options A, B, and C are necessarily incorrect for this reason.

Question 65

A defense lawyer represented a defendant in a civil action brought under the Racketeer Influenced and Corrupt Organizations (RICO) Act. During discovery, the plaintiff’s counsel argued that the defense lawyer had counseled the defendant to engage in a fraud, and that therefore the defense lawyer’s communications with the defendant were discoverable under the crime-fraud exception to the attorney-client privilege. The district court judge ordered an evidentiary hearing to determine whether the crime-fraud exception to the attorney-client privilege applied. What facts, if true, would best support the defense lawyer’s argument that the Model Rules of Professional Conduct permit him to testify and advocate at the evidentiary hearing? A The lawyer’s testimony will conflict with opposing counsel’s argument and evidence. B The lawyer will be testifying about the legal services he provided his client. C The district court has not yet set a trial date in the matter. D The case was recently reassigned to a new judge.

Answer 65

B The lawyer will be testifying about the legal services he provided his client. Answer option B is correct. Under Model Rule of Professional Conduct 3.7(a)(2), a lawyer may testify and advocate at the same proceeding when his testimony concerns the nature or value of the legal services he has rendered in the case. This is a practical exception that avoids the need for a separate trial on the issue, which would be required if the lawyer were disqualified. Therefore, the fact that the lawyer’s anticipated testimony will concern the legal services he provided to his client brings these facts within Model Rule 3.7(a)(2)’s exception to the general rule that a lawyer may not act as an advocate at a trial in which he is likely to be a witness, and best supports the lawyer’s argument that he should not be disqualified for his dual role.Answer options A and C are incorrect. Each of those options contains facts that are relevant to the exception to disqualification under Model Rule 3.7(a)(3) to avoid substantial hardship to the client. When seeking to avoid disqualification under this exception, a lawyer must balance the possible prejudice to the tribunal and opposing party caused by his dual role against any hardship to the client resulting from his disqualification. Even if the lawyer here used Model Rule 3.7(a)(3)’s exception as a fallback position, the facts in answer options A and C would not support his arguments against disqualification. Rather, answer option A tends to show that there is greater risk of confusion to the tribunal, and prejudice to the opposing party, caused by conflicting testimony. The fact in answer option C that no trial date has been set cuts against any argument that the client would suffer substantial hardship if the lawyer were disqualified and replacement counsel would be needed.Finally, answer option D is incorrect for similar reasons. Comment 3 to Model Rule 3.7 explains that the exception for testimony about the value and nature of legal services exists because usually the tribunal has firsthand experience with a lawyer’s work, and therefore less need to rely on the adversarial system to judge a witness’s credibility. Answer option D’s fact that the case was recently reassigned means that the new judge is less familiar with the lawyer and his work, and would need to rely more on the adversarial system to evaluate the credibility of the lawyer as a witness. Therefore, answer option D does not support the lawyer’s argument against disqualification.

Question 66

A lawyer was defending a dentist against a former patient’s malpractice suit. The lawyer had moved to dismiss the plaintiff’s claim at summary judgment. The patient’s attorney argued that the dentist had been tired when he filled the patient’s cavity, due to an overly full schedule of patients the day before. At the summary judgment hearing, the lawyer told the court that the dentist had worked a normal schedule of eight patients the day before filling the patient’s cavity. Following the hearing, the lawyer learned that in fact, the dentist’s schedule on the day in question involved twelve patient visits, including a three-hour root canal at the end of the day. All told, the dentist had completed a sixteen-hour workday the day before he filled the patient’s cavity. The lawyer informed the client that he would have to correct the record with the court. The client insisted that the lawyer not make the correction. Do the Model Rules of Professional Conduct permit the lawyer to follow the client’s instructions? A Yes, because a lawyer must defer to the client’s wishes on the means used to achieve the goals of the representation. B Yes, because the lawyer did not know that the statement about the dentist’s schedule was false when he made it to the court. C No, because the lawyer is required to correct all misstatements of fact made to the court. D No, because the statement about the dentist’s schedule is material.

Answer 66

D No, because the statement about the dentist’s schedule is material. Answer option D is correct. Rule 3.3(a)(1) of the Model Rules of Professional Conduct prohibits a lawyer from knowingly failing to correct a false statement of material fact previously made to the tribunal by the lawyer. Here, the lawyer’s statement to the court that the dentist’s schedule was a normal day of eight patients was false. The dentist’s schedule is material to the case, in light of the arguments from the patient’s attorney that the dentist was overtired when he filled the patient’s cavity. Because Model Rule 3.3(a) requires the lawyer to correct the statement, the lawyer cannot follow the client’s instructions to refrain from correcting it.Answer option A is incorrect. Model Rule 1.2(a) requires a lawyer to obey a client’s decision on whether to settle a civil case such as this malpractice claim. A lawyer is not required to obey a client’s decision on whether to correct a misstatement that the lawyer made to the court. In fact, the client’s insistence that the lawyer disregard his obligations under the Model Rules of Professional Conduct arguably provide the lawyer with grounds for terminating the relationship. Note that Model Rule 1.16(a)(1) requires the lawyer to withdraw from a client relationship where the representation will result in violation of the Rules of Professional Conduct or other law. Answer option B is incorrect. Model Rule 3.3(a)(1) requires a lawyer to correct any statement he made to the court after subsequently learning that the statement was incorrect. The lawyer need not know that the statement was false at the time he made it in order for correction to be required. Answer option C is incorrect. Model Rule 3.3(a)(1) requires a lawyer to correct only false statements of material fact previously made by the lawyer to the tribunal. A lawyer need not correct false statements that were immaterial to the case

Question 67

A lawyer was representing a large corporation in defending against an antitrust complaint brought by its competitor. The corporation had been served with the complaint and the lawyer was drafting its answer. In discussing their proposed strategy, the corporation’s in-house counsel told the lawyer that he wanted to file as many counterclaims as possible, in an attempt to intimidate the plaintiff corporation with a potentially expensive and protracted litigation. In-house counsel rattled off several possible counterclaims and urged the lawyer to find as many as he could. In-house counsel was able to sketch out some general facts to support the counterclaims. The lawyer then researched the applicable law and elements for each claim, but the lawyer will need discovery to develop further evidence in support of each element. Do the Model Rules of Professional Conduct permit the lawyer to follow in-house counsel’s proposed strategy? A Yes, because the counterclaims need not have developed evidentiary support when they are filed. B Yes, because under the Model Rules the lawyer must follow in-house counsel’s instructions on whether or not to file any and all counterclaims, regardless of their support in fact or law. C No, because the counterclaim strategy is an attempt to wrongfully block the plaintiff corporation’s right to redress under the antitrust laws. D No, because the counterclaims are not supported by reasonably developed evidence.

Answer 67

A Yes, because the counterclaims need not have developed evidentiary support when they are filed. Answer option A is correct. Rule 3.1 of the Model Rules of Professional Conduct prohibits a lawyer from bringing a frivolous claim. A frivolous claim has no basis in fact or existing law, or otherwise lacks a good-faith argument for an extension, modification, or reversal of existing law. Comment 2 to Model Rule 3.1 explains that “[t]he filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.” Here, the need for supporting evidence does not render the counterclaims frivolous. Because no other facts suggest that the counterclaims lack a basis in fact or law, the Model Rules permit the lawyer to file the counterclaims. Answer option D is necessarily incorrect for the same reason.Answer option B is incorrect as overbroad. The Model Rules do not require the lawyer to obey in-house counsel’s instructions to file any and all counterclaims. If the counterclaims were frivolous, then the lawyer could not file them under Model Rule 3.1, even if the client wished to pursue them. Answer option C is incorrect. Model Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation consistent with the client’s interests. A lawyer’s conduct complies with Model Rule 3.2 when a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Here, while in-house counsel’s stated purpose is to possibly complicate and lengthen the proceedings, a reasonably competent lawyer would pursue any and all nonfrivolous counterclaims in defending his client. The counterclaims thus have some substantial purpose other than delay: to assert the client’s claims to possible recovery. Therefore, the counterclaim strategy does not violate the lawyer’s obligations to make reasonable efforts to expedite litigation under Model Rule 3.2.

Question 68

Which of the following is NOT a class of persons with whom the Model Rules of Professional Conduct prohibit lawyers from communicating ex parte? A Judges. B Jurors. C Prospective jurors. D Court reporters. E Magistrates.

Answer 68

D Court reporters. Answer option D is correct. Unless authorized by other law or court order, Model Rule of Professional Conduct 3.5(b) prohibits lawyers from engaging in ex parte communications with judges, jurors, prospective jurors, or other officials. A lawyer may communicate with a court reporter outside the presence of opposing counsel. Answer options A, B, C, and E are necessarily incorrect, because each lists a class of persons a lawyer may not communicate with ex parte.

Question 69

When, if ever, do the Model Rules of Professional Conduct permit a lawyer to assert personal knowledge of facts in issue during litigation? A Only during closing arguments. B Only during opening statements. C Only when testifying as a witness and during closing arguments and opening statements. D Only when testifying as a witness. E A lawyer may never assert personal knowledge of facts in issue during litigation.

Answer 69

D Only when testifying as a witness. Answer option D is correct. Model Rule of Professional Conduct 3.4(e) prohibits a lawyer from, among other things, asserting personal knowledge of facts in issue except when testifying as a witness. Answer options A, B, C, and E are necessarily incorrect for this same reason.

Question 70

A lawyer was representing a motorist as a defendant in a personal injury action arising out of a car accident. The sole passenger in the motorist’s car saw that the motorist seemed distracted by her cell phone buzzing at the time of the accident. The lawyer suspected that opposing counsel would reach out soon to all of the accident witnesses. The lawyer needed more time to develop his own evidence. In an attempt to stall opposing counsel’s efforts, the lawyer advised the passenger not to voluntarily offer what she knew about the cell phone to the other driver or his lawyer. The lawyer’s actions came to the attention of the state disciplinary board. Which facts, if true, would best support the state board’s conclusion that the lawyer should NOT be disciplined? A Opposing counsel ultimately subpoenaed the passenger and obtained the same information. B The passenger is the motorist’s sister. C The passenger is the motorist’s best friend. D Opposing counsel ultimately obtained the information from the motorist while deposing her in discovery.

Answer 70

B The passenger is the motorist’s sister. Answer option B is correct. Model Rule of Professional Conduct 3.4(f) prohibits a lawyer from counseling a person, other than a client, to refrain from voluntarily giving relevant information to another party, unless the person is a relative, employee, or other agent of the client, and the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information. Here, the fact that the passenger is the motorist’s sister, a relative, best supports the state board’s conclusion that the lawyer should not be disciplined for counseling the passenger to refrain from voluntarily giving information about the accident. Answer option C is incorrect, because Model Rule 3.4(f)’s exceptions do not include close friends of the client.Answer options A and D are incorrect for similar reasons. Whether the opposing party ultimately discovered relevant information to which the lawyer obstructed access does not determine whether the lawyer complied with her duties under Model Rule 3.4. The fact that the opposing party ultimately discovered the cell phone facts, whether from the motorist or from the passenger, does not determine whether the lawyer should be disciplined for violating Model Rule 3.4.

Question 71

A lawyer represented a restaurant as a defendant in a personal injury action arising out of a patron’s slip and fall. A waitress at the restaurant had witnessed the patron’s fall in a puddle of spilled water. The waitress also knew that other patrons had complained about the restaurant’s slow pace in cleaning up previous spills. The plaintiff served the waitress with a subpoena and notice of deposition. The waitress complained to the lawyer that she would lose a day’s work in attending the deposition. The lawyer told her she would be compensated for her time. In preparing the waitress to testify, the lawyer advised her not to testify about the other patrons’ complaints about the restaurant’s slow response time to previous spills, even if the plaintiff’s attorney asked about them. Did the lawyer comply with the Model Rules of Professional Conduct? A Yes, because patron complaints about other spills are not relevant. B Yes, because the waitress is the restaurant’s employee. C No, because the Model Rules prohibit a lawyer from paying a witness. D No, because the waitress’s response to a direct question from opposing counsel in a deposition is not a voluntary offer of information that she could properly refrain from providing.

Answer 71

D No, because the waitress’s response to a direct question from opposing counsel in a deposition is not a voluntary offer of information that she could properly refrain from providing. Answer option D is correct. Model Rule of Professional Conduct 3.4(f) prohibits a lawyer from counseling a person other than a client to refrain from voluntarily giving relevant information to another party. However, if the person is a relative, employee, or other agent of the client and the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information, then the lawyer may counsel the person to refrain from voluntarily giving relevant information to the opposing party. Here, although the waitress is an employee of the lawyer’s client (the restaurant), it was nevertheless improper for the lawyer to counsel her not to respond to a direct question about previous complaints, because her response to such a direct question is not a voluntary offer of information. The waitress is obligated to respond to the plaintiff’s attorney’s direct questions about the prior spills, and the lawyer may not advise her to refrain from answering any of the plaintiff’s attorney’s questions about the restaurant’s reaction time to previous spills. Note that it would also be difficult for the lawyer to hold a reasonable belief that the waitress’s interests would not be adversely affected if she withheld this relevant information while under oath at a deposition. Answer option B is necessarily incorrect for these same reasons. Answer option A is incorrect. The waitress’s knowledge about prior spills is arguably relevant to any argument from the plaintiff’s counsel that the restaurant continued to be negligent in promptly cleaning up the spill that led to the plaintiff’s injury. Answer option C is incorrect. Comment 3 to Model Rule 3.4 clarifies that it is “not improper to pay a witness’s expenses . . . on terms permitted by law.” Most jurisdictions adopt the ABA’s interpretation of Model Rule 3.4 in Formal Opinion 96-402 (1996), which states that a lawyer may compensate a nonexpert witness for her time spent in a deposition, provided that the payment is reasonable and not conditioned on the substance of the witness’s testimony. See Douglas R. Richmond, Compensating Fact Witnesses: The Price Is Sometimes Right, 42 Hoftstra L. Rev. 905, 911-15 (2014). Therefore, the lawyer did not violate the Model Rules by offering to compensate the witness for her time spent in the deposition.

Question 72

Which of the following is the most accurate definition of an ex parte communication? A Any communication made by a lawyer to a judge outside of chambers. B Any communication made by a lawyer to a juror outside of court. C Any communication made by a lawyer to an unrepresented party outside of court. D Any communication made by a lawyer to a judge, juror, or prospective juror outside the presence of clients. E Any communication made by a lawyer to a judge, juror, or prospective juror when opposing counsel is not present.

Answer 72

E Any communication made by a lawyer to a judge, juror, or prospective juror when opposing counsel is not present. Answer option E is correct. Black’s Law Dictionary defines ex parte communications as “communication[s] between counsel and the court when opposing counsel is not present.” Model Rule of Professional Conduct 3.5(b) prohibits ex parte communications with judges, jurors, or potential jurors during the course of a proceeding. Answer options A, B, C, and D are necessarily incorrect for this reason.

Question 73

A lawyer was defending his client against fraud claims brought by the client’s former employer. At trial, the lawyer expected the client’s former coworker to provide damaging testimony. As expected, opposing counsel called the former coworker to testify. However, the lawyer was surprised when the coworker claimed that he had no knowledge of the alleged fraud on direct examination, and provided fairly favorable testimony in cross-examination. In reviewing the events of the trial day with his client, the lawyer shared his surprise. The client told the lawyer not to worry about the former coworker. The client said the former coworker was known to be in dire financial straits, so the client’s brother had offered the coworker a substantial sum of money to testify favorably. The lawyer reminded the client of the lawyer’s duty of candor, but the client said it was too late, because the coworker had already testified. What, if anything, should the lawyer do next? A The lawyer should notify the court of the false testimony and the actions of his client’s brother, and, if necessary, seek the court’s leave to withdraw from the representation. B The lawyer should immediately seek the court’s leave to withdraw and encourage the client to find new representation. C The lawyer need not do anything, because he has fulfilled his obligation to take reasonable remedial measures by trying to convince his client to stop his brother from bribing the coworker. D The lawyer need not do anything, because the client’s brother, not the client, is directly responsible for any fraud on the court.

Answer 73

A The lawyer should notify the court of the false testimony and the actions of his client’s brother, and, if necessary, seek the court’s leave to withdraw from the representation. Answer option A is correct. The lawyer here is required to take reasonable remedial measures under Model Rule 3.3(a)(3) and 3.3(b). Under Model Rule 3.3(a)(3), a lawyer must take reasonable remedial measures when he comes to know that material evidence he offered was false. Under Model Rule 3.3(b), a lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding must also take reasonable remedial measures. Here, the lawyer knows that the coworker offered false testimony to the court, so he is required to take reasonable remedial measures under Model Rule 3.3(a)(3). The lawyer also knows that the client’s brother bribed the coworker to testify falsely before the court. The lawyer must therefore take reasonable remedial measures under Model Rule 3.3(b). The lawyer has begun to take reasonable remedial measures by first attempting to convince his client to confess to the court. Because his client will not tell the court the truth, the lawyer must continue his efforts to correct the false testimony and make the court aware of the fraud. Answer option C is therefore incorrect, because the lawyer did not succeed in convincing his client to come forward. The lawyer’s next step is to tell the court about the coworker’s false testimony and the witness bribing, and, if necessary, seek the court’s permission to withdraw from the representation. See Model Rule 1.16(b)(2) (permitting optional withdrawal where a client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent).Answer option B is incorrect as incomplete. The lawyer may need to withdraw from this representation ultimately. However, in light of his client’s refusal to tell the court the truth, the lawyer’s withdrawal will not undo the effect of the false evidence offered by the coworker. Therefore, the lawyer must first tell the court, so that the court can (1) decide how best to cure the effect of the false testimony, and (2) decide whether to permit the lawyer to withdraw from the representation. See Comment 10, Model Rule 3.3. Answer option D is incorrect. The fact that the brother, and not the client himself, bribed the witness does not alter the lawyer’s duty here, because Model Rule 3.3(b) applies anytime a lawyer has knowledge of any person’s (not just a client’s) fraud or crime related to the proceeding.

Question 74

A lawyer was defending a complex, high-profile tort action arising out of a tanning company’s alleged pollution of a town’s entire water supply. The trial had already lasted over a month. At the end of a long trial day, after the jury was discharged, the lawyer raised several complex evidentiary objections over the anticipated testimony of the plaintiff’s main witness. The judge told the lawyer that they would resolve the objections in detail the next morning. The lawyer responded that he worried the objections would take a long time to work through, and that it might be preferable to begin arguments that evening to avoid losing another day with the jury. The judge shouted in reply that the proceedings were concluded for the day, and in response, the lawyer raised his voice and insisted that he was simply “trying to move things along.” Did the lawyer comply with his obligations under the Model Rules of Professional Conduct? A Yes, because the Model Rules permit a lawyer to match the judge’s tone in zealously advocating for his client. B Yes, because under the trying circumstances the lawyer’s conduct was reasonable. C No, because a lawyer is not permitted to respond in kind when a judge loses his temper. D No, because a lawyer may never raise his voice in court for any reason.

Answer 74

C No, because a lawyer is not permitted to respond in kind when a judge loses his temper. Answer option C is correct. Rule 3.5(d) of the Model Rules of Professional Conduct prohibits a lawyer from engaging in conduct intended to disrupt a tribunal. Comment 4 explains that “[a] lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is not justification for similar dereliction by an advocate.” Answer option A is necessarily incorrect for the same reason. Answer option B is incorrect because the Model Rules do not propose any reasonableness standard or other framework for evaluating whether a lawyer’s conduct is intended to disrupt the tribunal. Answer option D is incorrect as overbroad. There may be legitimate reasons for a lawyer raising his voice in court—for example, to express emotion during an opening statement or closing argument. Here, the lawyer’s shouting is improper under the rules because it compromises the decorum of the tribunal.

Question 75

Which of the following is NOT a proper purpose for which a lawyer may seek to delay litigation under the Model Rules of Professional Conduct? A An emergency in the lawyer’s personal life renders a briefing deadline difficult for the lawyer to meet. B A delay would financially benefit the client by potentially increasing the opposing party’s settlement offer. C The client’s computer servers failed and will not restart in time to complete discovery responses. D A storm and flooding has disrupted electrical service and transportation in the area, and the lawyer is unable to reach the location of a deposition.

Answer 75

B A delay would financially benefit the client by potentially increasing the opposing party’s settlement offer. Answer option B is correct. Rule 3.2 of the Model Rules of Professional Conduct requires lawyers to “make reasonable efforts to expedite litigation consistent with the interests of the client.” The comment to Model Rule 3.2 explains that realizing financial gain or other benefit from delay in litigation is not a legitimate interest of the client that can justify a request for an otherwise improper delay. Answer options A, C, and D are incorrect because each lists a proper reason that would justify a delay in litigation.

Question 76

When, if ever, do the Model Rules of Professional Conduct require a lawyer to present evidence that the lawyer reasonably believes is false? A A lawyer may never present evidence that he reasonably believes is false. B A lawyer must defer to his client’s decision on which evidence to present, even if the lawyer reasonably believes the evidence is false. C A lawyer must defer to his client’s decision on which evidence to present in a criminal matter, even if the lawyer reasonably believes the evidence is false. D A lawyer must defer to his client’s decision to testify on his own behalf in a criminal matter, even if the lawyer reasonably believes his client’s testimony is false.

Answer 76

D A lawyer must defer to his client’s decision to testify on his own behalf in a criminal matter, even if the lawyer reasonably believes his client’s testimony is false. Answer option D is correct. In general, Model Rule of Professional Conduct 3.3(a) prohibits a lawyer from presenting evidence that the lawyer knows is false. Model Rule 3.3(a)(3) permits a lawyer to refuse to offer evidence that the lawyer reasonably believes is false. However, a lawyer may not refuse to present the testimony of a defendant in a criminal matter, even if the lawyer believes that testimony is false. Unless the lawyer knows the criminal defendant’s testimony will be false, the lawyer must honor the client’s decision to testify. See Comment 9, Model Rule of Professional Conduct 3.3. See also Model Rule of Professional Conduct 1.2(a) (requiring the lawyer to defer to a criminal defendant’s decision to testify). Answer option A is necessarily incorrect for the same reason.Answer options B and C are incorrect because both overstate the degree to which the Model Rules require a lawyer to defer to a client’s decision to present evidence. A lawyer need only defer to a criminal defendant’s decision on whether to testify. To the extent a client, whether civil or criminal, proposes other evidence that the lawyer reasonably believes is false, the lawyer may refuse to offer it under Model Rule 3.3(a)(3). Note that while Comment 8 to Model Rule 3.3 advises a lawyer to “resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.”

Question 77

When, if ever, do the Model Rules of Professional Conduct permit a lawyer to state a personal opinion about the justness of a cause at trial? A Only during opening statements. B Only during closing arguments. C During opening statements or closing arguments. D A lawyer may never state a personal opinion at trial on the justness of a cause.

Answer 77

D A lawyer may never state a personal opinion at trial on the justness of a cause. Answer option D is correct. Model Rule of Professional Conduct 3.4(e) prohibits a lawyer from stating a personal opinion about the justness of a cause at trial. That same subsection also prohibits lawyers from offering personal opinions about the credibility of a witness, the culpability of a civil litigant, and the guilt or innocence of an accused. Such unfair arguments can violate an individual’s right to a fair trial “grounded on the jury’s determination of the issues based on the evidence fairly presented.” See Mary Beth Meyer, Unringing the Bell: Enforcing Model Rule 3.4(e) as an Alternative to Trial Reversal for Attorneys’ Improper Argument, 11 J. Leg. Prof. 187-88 (1986). Answer options A, B, and C are necessarily incorrect for the same reason.

Question 78

A lawyer represented a large corporation as defendant against a small corporation’s unfair competition claims. After lengthy discovery, the lawyer prepared 21 different summary judgment motions seeking dismissal. All together, the motions included every possible ground for dismissal the lawyer could conceive. While most had some support on the facts and the law, the law contradicted the lawyer's position on one motion. The lawyer was not able to think of an argument to reverse the contradictory law, but planned to file the motion anyway. The lawyer’s goal was to overwhelm the small corporation with as many motions as possible, thereby increasing the chances of a weak or ill-prepared response from opposing counsel and a win for the large corporation. Does the lawyer’s strategy comply with the Model Rules of Professional Conduct? A Yes, because the Model Rules prohibit a lawyer from filing frivolous claims, not motions. B Yes, because most of the lawyer’s grounds for dismissal are grounded in the facts and the law. C No, because the only substantial purpose in filing so many different motions is to delay the litigation. D No, because the contradictory law renders the one summary judgment motion frivolous.

Answer 78

D No, because the contradictory law renders the one summary judgment motion frivolous. Answer option D is correct. Model Rule of Professional Conduct 3.1 prohibits a lawyer from bringing or defending a proceeding, or asserting or controverting an issue therein, unless there is a basis in law and fact for doing so that is not frivolous. A nonfrivolous basis includes a good faith argument for an extension, modification, or reversal of existing law. Here, one of the motions the lawyer plans to file is directly contradicted by controlling law. The lawyer has no good-faith argument to reverse this contradictory law, so the motion is frivolous. For this reason, the lawyer’s plan does not comply with his obligations under Model Rule 3.1. Answer option A is incorrect because the obligation to refrain from asserting frivolous grounds applies to claims and motions, as well as any arguments a lawyer makes. Answer option B is incorrect because all of the motions the lawyer plans to file must be meritorious to meet his obligations under Rule 3.1. Answer option C is incorrect because the lawyer had a substantial purpose for filing the motions other than delay. Model Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client. In evaluating lawyer compliance with this duty, the question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Here, the facts make no mention of the lawyer seeking an extension to file his numerous motions, or any hope on the lawyer’s part that the plaintiff’s counsel would need an extension to respond. A reasonably competent lawyer would seek out as many nonfrivolous grounds for summary judgment as are available. Therefore, the lawyer has likely not violated his duty to expedite the litigation.

Question 79

A lawyer was defending a physician in a fraud case brought by an insurer. The plaintiff’s counsel planned to argue at trial that the physician had a history of fraudulent overbilling, and that the physician’s former attorney had aided him in committing the fraud. To support this argument, the plaintiff’s counsel sought production of all documents pertaining to communications between the physician and his former attorney discussing billing practices and strategy. The current defense lawyer refused to produce those documents, on the grounds that they were protected by the attorney-client privilege. The plaintiff’s counsel filed a motion to compel, arguing that the documents were not privileged because the crime-fraud exception to the attorney-client privilege applied. While the current defense lawyer raised several arguments supported by case law arguing against the exception, the trial court agreed with the plaintiff’s counsel, and ordered production. The lawyer still refused to produce the documents, and instead filed an interlocutory appeal to review the trial court’s decision on the privilege issue. All told, the motion to compel production added six weeks to the discovery process. Did the lawyer comply with the Model Rules of Professional Conduct by not producing the documents? A Yes, because the lawyer cannot produce privileged documents without the client’s written informed consent. B Yes, because the lawyer argued that no valid obligation to produce exists. C No, because the lawyer knowingly disobeyed the trial court’s order to produce the documents. D No, because the motion to compel production of the documents substantially delayed the litigation.

Answer 79

B Yes, because the lawyer argued that no valid obligation to produce exists. Answer option B is correct. Model Rule of Professional Conduct 3.4 prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists. Here, the lawyer is arguing that he should not have to produce the documents at issue (i.e., that no valid obligation exists) because the documents contain privileged communications and the crime-fraud exception to the attorney-client privilege does not apply. His arguments in opposing the motion to compel were supported by case law and therefore not frivolous. Answer option C is necessarily incorrect for the same reason.Answer option A is incorrect because it misstates the law. In general, a lawyer may reveal information relating to the representation of a client if the client gives informed consent. See Model Rules Prof'l Conduct R.1.6(a). However, the informed consent need not be in writing. Moreover, a client’s informed consent is not the only means by which the Model Rules permit a lawyer to reveal information relating to the representation. Answer option D is incorrect because the motion served a substantial purpose other than delay. Model Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation consistent with the client’s interests. In evaluating compliance with Model Rule 3.2, the question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Here, while the privilege dispute stalled the discovery schedule, a competent lawyer acting in good faith would have asserted the privilege argument here and resisted discovery. Because the lawyer had some substantial purpose other than delay, he complied with his obligations under Model Rule 3.2.

Question 80

A lawyer represented a consumer who had been injured by an overheated humidifier. The defendant manufacturer argued that the humidifier had malfunctioned because the consumer had used it in a manner contrary to the specifications in the operating manual. While being deposed by the defendant’s counsel, the consumer testified that she had never received a copy of the operating manual. This testimony surprised the lawyer, because in previous discussions the consumer had told him that she had briefly reviewed the manual before plugging in the humidifier. What, if anything, should the lawyer do? A The lawyer should ask to pause the deposition and then confidentially encourage the consumer to correct her testimony about the operating manual. B The lawyer should halt the deposition and correct the consumer’s testimony himself. C The lawyer need not do anything, because the consumer, not the lawyer, has made the false statement. D The lawyer need not do anything, because a deposition is not a proceeding before a tribunal where the lawyer’s duty of candor applies.

Answer 80

A The lawyer should ask to pause the deposition and then confidentially encourage the consumer to correct her testimony about the operating manual. Answer option A is correct. Under Model Rule of Professional Conduct 3.3(a)(3), if a lawyer’s client has offered material evidence that the lawyer knows is false, the lawyer must take reasonable remedial measures. In light of the dispute over whether the consumer’s misuse of the humidifier caused it to malfunction, the facts about the consumer’s access to the operating manual are material. Comment 10 to Model Rule 3.3 advises that when a client offers false testimony, the lawyer’s “proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the . . . correction of the false statements or evidence.” Therefore, upon realizing that the consumer had testified falsely at the deposition about her access to the operating manual, the lawyer should request a brief recess in order to have a confidential discussion with the consumer. During this discussion, the lawyer should encourage the consumer to correct her testimony and remind her that he owes the tribunal a duty of candor that prohibits him from knowingly presenting false evidence.Answer option B is incorrect because the lawyer may make the correction himself only if the consumer refuses to correct her testimony after the lawyer urges her to do so. Answer option C is incorrect because the plain language of Model Rule 3.3(a)(3) applies to false testimony provided by the lawyer’s client. Answer option D is incorrect because Model Rule 3.3 applies when a lawyer represents a client at an ancillary proceeding conducted pursuant to a court’s adjudicative authority, including a deposition.

Question 81

A lawyer represented a client in a personal-injury suit. While researching the admissibility of a piece of evidence, the lawyer found a relevant case that was unfavorable to her client’s position. Under what circumstances must the lawyer disclose the case to the court? A Under all circumstances. B Only if the case is controlling legal authority. C Only if the case is controlling legal authority and directly adverse to her client’s position. D Only if the case is controlling legal authority, directly adverse to her client’s position, and has not been disclosed by the other party.

Answer 81

D Only if the case is controlling legal authority, directly adverse to her client’s position, and has not been disclosed by the other party. Answer option D is correct. Under the Model Rules of Professional Conduct, a lawyer must disclose controlling legal authority that is directly adverse to the client’s position if the other side has not disclosed the authority. However, a lawyer has no duty to disclose noncontrolling authority, or authority that is not directly adverse to the client’s position. Here, the lawyer must disclose the unfavorable case only if it satisfies all three criteria. It must be controlling legal authority, directly adverse to the client’s position, and not disclosed by the other side. Answer option A is incorrect. There is no general duty to reveal unfavorable authority. Merely persuasive authority that is noncontrolling need not be disclosed. Examples of persuasive authority include cases from other jurisdictions, nonprecedential trial-court decisions, and secondary sources. Answer option B is incorrect. Not all controlling legal authority needs to be disclosed. Some controlling authority may be unfavorable, but not directly adverse to the client’s position. For example, a case might interpret language in a statute that is similar to language in the statute at issue in the lawyer’s case. The case’s interpretation of the language may be unfavorable, but not directly adverse because it concerns a different statute. Answer option C is incorrect. Even controlling legal authority that is directly adverse must be disclosed only if the other party has not disclosed it. If the other party has brought the authority to the court’s attention, a lawyer has no duty to do the same.

Question 82

A lawyer learned that his client planned to offer documents as evidence to an arbitration panel. The lawyer was concerned that the documents might have been forged. Which of the following accurately states the ethical rule concerning offering the documents as evidence? A The lawyer cannot offer the documents if the lawyer believes or knows that they are forged. B The lawyer cannot offer the documents only if the lawyer knows that they are forged. C The lawyer must offer the documents if the client insists that they are genuine and wishes to introduce them as evidence. D The ethical rules do not apply because the matter is in front of an arbitration panel, not a court.

Answer 82

B The lawyer cannot offer the documents only if the lawyer knows that they are forged. Answer option B is correct. Under the Model Rules of Professional Conduct, a lawyer cannot offer evidence or testimony that the lawyer knows to be false. The rules apply to all proceedings before a tribunal. However, the rules do not prohibit lawyers from introducing evidence or testimony that the lawyer merely believes, but does not know, to be false. Here, the lawyer cannot offer the client’s documents into evidence if the lawyer knows that the documents are forged. Neither the fact that the hearing is in front of an arbitration panel, rather than a court, or the client’s insistence that the documents are genuine, would permit the lawyer to offer into evidence documents he knows to be forged. However, the lawyer could offer the documents if the lawyer merely believed that they were forged. Answer option A is incorrect. The lawyer’s belief, but not knowledge, that the documents are forged does not prevent the lawyer from entering the documents into evidence. A lawyer who merely suspects that evidence is false may choose not to offer the evidence, but the lawyer is not forbidden from offering it. Answer option C is incorrect. The lawyer is not required to enter the documents as evidence even if the client insists that they are genuine and should be offered. The lawyer may refuse to offer the documents if the lawyer believes that they are forged and must refuse to offer the documents if the lawyer knows that they are forged. Answer option D is incorrect. The Model Rules of Professional Conduct governing candor to the tribunal apply to all adjudicative proceedings, including arbitration hearings. Here, the lawyer cannot knowingly offer false evidence even though the hearing is in front of an arbitration panel, rather than a court.

Question 83

When, if ever, do the Model Rules of Professional Conduct permit a lawyer to engage in ex parte communications? A When the communication is about procedural matters and does not concern the substantive merits of a pending claim or defense. B When the communication is authorized by law or court order. C When the communication is with a potential juror who has not yet been selected. D The Model Rules prohibit all ex parte communications under any circumstances.

Answer 83

B When the communication is authorized by law or court order. Answer option B is correct. Model Rule 3.5(b) prohibits ex parte communications by lawyers with judges, jurors, and prospective jurors. The only exception allowed is if the communications are authorized by law or court order. Here, a lawyer would be permitted to engage in ex parte communication if authorized by law or court order. There are no other circumstances that would authorize ex parte communication. Answer option A is incorrect. Model Rule 3.5(b) prohibits ex parte communications by lawyers with judges, jurors, and prospective jurors. The only exception allowed is if the communications are authorized by law or court order. Here, ex parte communications, even about procedural matters, would violate the Model Rules. Note that Rule 2.9 of the Model Code of Judicial Conduct permits a judge to engage in ex parte communications regarding scheduling and administrative matters. However, this rule applies to a judge initiating ex parte contact, not a lawyer. Additionally, procedural matters can be much broader than mere scheduling or administrative matters. The only permissible ex parte communications are those authorized by law or court order. Answer option C is incorrect. Model Rule 3.5(b) prohibits ex parte communications by lawyers with judges, jurors, and prospective jurors. The only exception allowed is if the communications are authorized by law or court order. Here, communications with a prospective juror would violate the Model Rules. The only permissible ex parte communications are those authorized by law or court order. Answer option D is incorrect. Model Rule 3.5(b) prohibits ex parte communications by lawyers with judges, jurors, and prospective jurors. The only exception allowed is if the communications are authorized by law or court order. Here, it is not accurate to state that the Model Rules never permit ex parte communications. Ex parte communications are permissible if authorized by law or court order.

Question 84

While waiting to cross as a pedestrian, a lawyer witnessed a two-vehicle car accident at an intersection. The lawyer was not injured or otherwise involved in the accident. One of the motorists in the accident sought representation at the lawyer’s firm in a potential personal-injury action. The lawyer’s partner had significant experience in personal-injury actions arising out of motor accidents. When the lawyer learned that the motorist had sought to retain the partner, the lawyer advised the partner that he was a witness to the accident. The partner told the motorist that the lawyer would be a potential witness in the case. Under the Model Rules of Professional Conduct, may the lawyer’s partner take the personal-injury action? A Yes, because the motorist knows that a witness to the accident works at the law firm. B Yes, because the tribunal is unlikely to be misled if the partner acting as advocate and the lawyer acting as an accident witness are from the same firm. C No, because lawyers from the same firm cannot advocate and testify as a necessary witness in the same case. D No, because the motorist can select other counsel without suffering substantial hardship.

Answer 84

B Yes, because the tribunal is unlikely to be misled if the partner acting as advocate and the lawyer acting as an accident witness are from the same firm. Answer option B is correct. Model Rule of Professional Conduct 3.7(a) bars lawyers from serving as necessary witnesses and advocating in the same proceeding. However, the same person must be advocating and serving as a witness for the general prohibition to apply. Under Model Rule 3.7(b), a lawyer may act as an advocate in 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 Rule 1.7 or 1.9, which govern conflicts of interest. Here, the lawyer witness would not also be advocating in the personal-injury action; his partner would be. Therefore, because none of the facts suggest a conflict of interest under Model Rules 1.7 or 1.9, the lawyer’s partner may take the case. Answer option A is incorrect. Model Rule of Professional Conduct 3.7(a) bars lawyers from serving as necessary witnesses and advocating in the same proceeding. However, the same person must be advocating and serving as a witness for the general prohibition to apply. Under Model Rule 3.7(b), a lawyer may act as an advocate in 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 Rule 1.7 or 1.9, which govern conflicts of interest. Here, the lawyer witness would not also be advocating in the personal-injury action; his partner would be. Therefore, because none of the facts suggest a conflict of interest under Model Rules 1.7 or 1.9, the lawyer’s partner may take the case. Because there are no facts suggesting a conflict of interest under Rules 1.7 or 1.9, the motorist’s knowledge that someone who witnessed the accident works at the law firm is not relevant. If the representation did pose a potential conflict of interest, the motorist’s informed written consent to the conflict would be one of the elements required under Model Rule 1.7(b) for a lawyer at the firm to undertake the matter despite the conflict. Under those circumstances, the motorist’s knowledge of the facts giving rise to the potential conflict would be relevant. Answer option C is incorrect. Model Rule of Professional Conduct 3.7(a) bars lawyers from serving as necessary witnesses and advocating in the same proceeding. However, the same person must be advocating and serving as a witness for the general prohibition to apply. Under Model Rule 3.7(b), a lawyer may act as an advocate in 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 Rule 1.7 or 1.9, which govern conflicts of interest. Answer option C misstates the rule. Nothing prohibits one lawyer from acting as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness, unless a conflict of interest is likely to exist. Here, nothing indicates any potential conflict of interest. Answer option D is incorrect. Model Rule of Professional Conduct 3.7(a) bars lawyers from serving as necessary witnesses and advocating in the same proceeding. However, the same person must be advocating and serving as a witness for the general prohibition to apply. Under Model Rule 3.7(b), a lawyer may act as an advocate in 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 Rule 1.7 or 1.9, which govern conflicts of interest. Here, the lawyer witness would not also be advocating in the personal-injury action; his partner would be. Therefore, because none of the facts suggest a conflict of interest under Model Rules 1.7 or 1.9, the lawyer’s partner may take the case. The fact that the motorist can hire other counsel without suffering substantial hardship is irrelevant. Clients are generally free to select counsel of their choice, even if they could choose other counsel. Note that a lawyer may testify as a witness in which the lawyer also acts as an advocate for the client if disqualifying the lawyer would be a substantial hardship for a client.

Question 85

A lawyer representing a defendant in a complex murder case interviewed a key state’s witness shortly before trial. The witness had been a long-time user of illegal drugs, an issue that the lawyer intended to use to impeach the witness’s credibility. While interviewing the witness, the lawyer noticed that the witness had fresh track marks on his wrists, indicating recent drug use. At trial, the witness surprisingly testified that he had not used drugs in several years. Outside of the presence of the jury, the lawyer informed the court of his intention to call himself as a witness. Can the lawyer testify and remain as trial counsel, consistent with the Model Rules of Professional Conduct? A Yes, because disqualifying the lawyer would work a substantial hardship on the client. B Yes, because a client’s right to his counsel of choice in a criminal matter takes precedence over the ethical rules. C No, because the testimony relates to a contested matter. D No, because the lawyer’s testimony carries the risk of confusing the jury as to the lawyer’s role in the case.

Answer 85

A Yes, because disqualifying the lawyer would work a substantial hardship on the client. Answer option A is correct. Model Rule of Professional Conduct 3.7 provides that an attorney should not serve as a witness in a case in which the attorney is acting as an advocate. There are three exceptions: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature or value of the legal services the lawyer has provided in the case; or (3) disqualifying the lawyer would work a substantial hardship on the client. Here, the lawyer’s testimony satisfies the third exception. Disqualifying the lawyer in the middle of a complex murder trial would create substantial hardship by either requiring the client to obtain new counsel midtrial or forcing a mistrial. Therefore, the lawyer should be permitted to testify while still serving as an advocate in the case. Answer option B is incorrect. Model Rule of Professional Conduct 3.7 provides that an attorney should not serve as a witness in a case in which the attorney is acting as an advocate. There are three exceptions: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature or value of the legal services the lawyer has provided in the case; or (3) disqualifying the lawyer would work a substantial hardship on the client. Here, although a criminal defendant has a general right to counsel of his choice, this right does not take precedence over the ethical rules. For example, if a client seeks to hire a lawyer, and the lawyer knows he has a conflict, such as being a potential witness, the lawyer must decline the representation despite the client’s wishes. Rather, here, the lawyer should be allowed to testify and serve as an advocate because disqualification would create substantial hardship by either requiring the client to obtain new counsel midtrial or forcing a mistrial. Answer option C is incorrect. Model Rule of Professional Conduct 3.7 provides that an attorney should not serve as a witness in a case in which the attorney is acting as an advocate. There are three exceptions: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature or value of the legal services the lawyer has provided in the case; or (3) disqualifying the lawyer would work a substantial hardship on the client. Here, although the lawyer’s testimony concerns a contested issue, the lawyer’s testimony satisfies the third exception. Disqualifying the lawyer in the middle of a complex murder trial would create substantial hardship by either requiring the client to obtain new counsel midtrial or forcing a mistrial. Therefore, the lawyer should be permitted to testify while still serving as an advocate in the case. Answer option D is incorrect. Model Rule of Professional Conduct 3.7 provides that an attorney should not serve as a witness in a case in which the attorney is acting as an advocate. There are three exceptions: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature or value of the legal services the lawyer has provided in the case; or (3) disqualifying the lawyer would work a substantial hardship on the client. Here, the lawyer’s testimony satisfies the third exception. Disqualifying the lawyer in the middle of a complex murder trial would create substantial hardship by either requiring the client to obtain new counsel midtrial or forcing a mistrial. Therefore, the lawyer should be permitted to testify while still serving as an advocate in the case, despite the concerns that always arise if a lawyer serves as advocate and witness in the same case.

Question 86

A lawyer represented a plaintiff in an action for breach of contract and breach of warranty stemming from the purchase of a car. During a six-day jury trial, the lawyer argued that applicable law in the jurisdiction permitted parol evidence on the interpretation of key terms in the contract. The jury found for the plaintiff on all claims. Three days after the court entered the jury’s final judgment, the lawyer discovered caselaw in the jurisdiction holding that parol evidence was not admissible to interpret key terms of a contract. The lawyer could not find any way to distinguish this authority, which was five years old and still good law. Upon further investigation, the lawyer learned that opposing counsel had not cited this authority nor made any argument that parol evidence was not admissible. What, if anything, do the Model Rules of Professional Conduct require the lawyer to do? A The lawyer should call the judge and provide a citation to the newly discovered controlling authority. B The lawyer should draft a letter with citation to the controlling authority, and send the letter to the judge’s chambers and opposing counsel. C The lawyer need not do anything, because he is only obligated to correct misstatements of fact, not omissions of law. D The lawyer need not do anything, because his obligation to correct any misstatement of law ended when the court entered final judgment on the jury verdict.

Answer 86

B The lawyer should draft a letter with citation to the controlling authority, and send the letter to the judge’s chambers and opposing counsel. Answer option B is correct. Model Rule of Professional Conduct 3.3(a)(3) prohibits a lawyer from knowingly failing to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to his client’s position and not disclosed by opposing counsel. A lawyer’s duty to disclose controlling, adverse legal authority continues to the end of the proceeding, defined as when a final judgment has been affirmed on appeal or the time for appeal has passed. Here, the caselaw discovered by the lawyer directly contradicts the client’s trial position that parol evidence was admissible, and opposing counsel did not cite it. Therefore, the lawyer is obligated to disclose the authority under Model Rule 3.3(a)(3). Answer option A is incorrect. Model Rule 3.3(a)(3) prohibits a lawyer from knowingly failing to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to his client’s position and not disclosed by opposing counsel. A lawyer’s duty to disclose controlling, adverse legal authority continues to the end of the proceeding, defined as when a final judgment has been affirmed on appeal or the time for appeal has passed. Here, the lawyer must disclose the controlling caselaw. However, communicating with the judge outside the presence of opposing counsel would be an impermissible ex parte communication barred under Model Rule 3.5(b). Therefore, any communication disclosing the authority should involve both the tribunal and opposing counsel. Answer option C is incorrect. Model Rule 3.3(a)(3) prohibits a lawyer from knowingly failing to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to his client’s position and not disclosed by opposing counsel. A lawyer’s duty to disclose controlling, adverse legal authority continues to the end of the proceeding, defined as when a final judgment has been affirmed on appeal or the time for appeal has passed. Here, the caselaw discovered by the lawyer directly contradicts the client’s trial position that parol evidence was admissible, and opposing counsel did not cite it. Therefore, the lawyer is obligated to disclose the authority under Model Rule 3.3(a)(3). Answer option D is incorrect. Model Rule 3.3(a)(3) prohibits a lawyer from knowingly failing to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to his client’s position and not disclosed by opposing counsel. A lawyer’s duty to disclose controlling, adverse legal authority continues to the end of the proceeding, defined as when a final judgment has been affirmed on appeal or the time for appeal has passed. Here, the caselaw discovered by the lawyer directly contradicts the client’s trial position that parol evidence was admissible, and opposing counsel did not cite it. Therefore, the lawyer is obligated to disclose the authority under Model Rule 3.3(a)(3). Although a jury verdict has been rendered, the case is not considered to have ended. Final judgment was entered just three days before the lawyer discovered the controlling authority, so it is still possible for the defendant to file a notice of appeal and obtain further review in the action. Therefore, the lawyer is still obligated to disclose the newly discovered authority.

Question 87

A lawyer represented a woman in a divorce proceeding in front of a judge. The lawyer sought attorney’s fees under a state fee-shifting statute that permitted recovery of attorney’s fees if the other side unnecessarily protracted the litigation. The other party opposed the lawyer’s request. The lawyer sought to testify concerning the number of hours she had worked on the case and the value of her services. Can the lawyer testify as a witness and continue to represent the woman in the same proceeding? A No, because a lawyer generally cannot serve as a witness and advocate in the same litigation, and no exception applies here. B No, because the lawyer is seeking to testify about a contested matter. C Yes, because the lawyer’s testimony concerns the value of her services. D Yes, because the prohibition against a lawyer serving as a witness in the same litigation does not apply to a bench trial, in which there is little risk of the judge confusing the lawyer’s two roles.

Answer 87

C Yes, because the lawyer’s testimony concerns the value of her services. Answer option C is correct. Under Model Rule of Professional Conduct 3.7, a lawyer generally cannot serve as a witness and advocate in the same matter, subject to three exceptions: (1) the testimony concerns an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered; or (3) disqualification of the lawyer would work substantial hardship on the client. Here, the second exception applies. The lawyer’s testimony concerns the value of the legal services she has rendered. Therefore, the lawyer may testify and continue to serve as an advocate in the case. Answer option A is incorrect. Under Model Rule of Professional Conduct 3.7, a lawyer generally cannot serve as a witness and advocate in the same matter, subject to three exceptions: (1) the testimony concerns an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered; or (3) disqualification of the lawyer would work substantial hardship on the client. Here, the second exception applies. The lawyer’s testimony concerns the value of the legal services she has rendered. Therefore, the lawyer may testify and continue to serve as an advocate in the case. Answer option B is incorrect. Under Model Rule of Professional Conduct 3.7, a lawyer generally cannot serve as a witness and advocate in the same matter, subject to three exceptions: (1) the testimony concerns an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered; or (3) disqualification of the lawyer would work substantial hardship on the client. Here, although the lawyer is testifying about a contested matter, the second exception applies. The lawyer’s testimony concerns the value of the legal services she has rendered. Therefore, the lawyer may testify and continue to serve as an advocate in the case. Answer option D is incorrect. Under Model Rule of Professional Conduct 3.7, a lawyer generally cannot serve as a witness and advocate in the same matter, subject to three exceptions: (1) the testimony concerns an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered; or (3) disqualification of the lawyer would work substantial hardship on the client. Here, it is irrelevant that the case is a bench trial rather than a jury trial. Although it is more common for testimony about the value of a lawyer’s services to be heard by a judge, rather than a jury, the same rule applies in both circumstances. Here, the lawyer’s testimony concerns the value of the legal services she has rendered. Therefore, the lawyer may testify and continue to serve as an advocate in the case.