Client-Lawyer Relationship Flashcards

Question

Colo. RPC 1.16A(a) Client File Retention

Answer 1

Client File Retention (a) Must retain client files unless given written permission to destroy or notice of destruction is sent with 30 days’ notice.

Answer 2

Client File Retention (b) After 10 years, may destroy without notice unless otherwise required.

Answer 3

Client File Retention (c) Criminal case files must be kept longer depending on severity.

Answer 4

Client File Retention (d) Lawyers may include file retention policy in fee agreements.

Answer 5

Fees (a) A lawyer cannot charge an unreasonable fee; reasonableness depends on multiple factors like time, skill, and results.

Answer 6

Fees (b) Basis or rate of the fee must be communicated to the client, preferably in writing.

Answer 7

Fees (c) Contingent fees are allowed in certain cases and must be clearly explained and documented in writing.

Answer 8

Fees (d) No contingent fees in criminal or certain domestic relations matters.

Answer 9

Fees (e) Fee splitting is allowed under strict conditions: proportionate work or joint responsibility, client consent, and a reasonable total fee.

Answer 10

Safekeeping Property (a) Hold client or third-party property separately in a trust account.

Answer 11

Safekeeping Property (b) Only minimal lawyer funds may be in trust to pay bank fees.

Answer 12

Safekeeping Property (c) Advance payments of fees and expenses go into trust and are withdrawn only when earned.

Answer 13

Safekeeping Property (d) Promptly notify, deliver, and account for client funds or property.

Answer 14

Safekeeping Property (e) Keep disputed funds separate until resolved.

Answer 15

Declining or Terminating Representation (a) Must decline or withdraw if illegal conduct, lawyer impairment, or discharge occurs.

Answer 16

Declining or Terminating Representation (b) Withdrawal is permitted if it won't hurt the client or if certain misconduct or conflicts arise.

Answer 17

Declining or Terminating Representation (c) Must comply with court rules when terminating representation.

Answer 18

Declining or Terminating Representation (d) Must return client property and unearned fees and help transition to new counsel.

Answer 19

Conflict of Interest: Current Clients (a) A lawyer can't represent a client if there's a conflict of interest: (1) One client is directly opposed to another client (2) Representation is significantly limited by the lawyer’s duties to someone else or personal interests

Answer 20

(b) A lawyer may still represent if: (1) The lawyer reasonably believes they can still be effective for all clients (2) It’s not illegal (3) The clients aren’t opposing each other in the same case (4) All affected clients give informed consent in writing

Answer 21

Current Clients: Specific Rules (a) Lawyers can’t enter into business deals with clients unless: (1) Terms are fair and clearly explained in writing (2) The client is advised to get independent legal advice (3) Client gives informed, written consent

Answer 22

Current Clients: Specific Rules Don't use client info against them

Answer 23

Current Clients: Specific Rules Don't ask for or prepare big gifts for yourself unless the client is family

Answer 24

Current Clients: Specific Rules Don't make media deals about a case before it ends

Answer 25

Current Clients: Specific Rules Financial help is limited to costs/expenses, with special allowances for indigent clients

Answer 26

Current Clients: Specific Rules Lawyers can't accept third-party payment unless the client consents, there's no interference, and confidentiality is maintained

Answer 27

Current Clients: Special Rules Group settlements/pleas require all clients to agree in writing

Answer 28

Current Clients: Special Rules Don't limit malpractice liability or settle such claims with unrepresented clients without advising them to get independent counsel

Answer 29

Current Clients: Special Rules Don't get a stake in the subject of a case, except for liens and contingent fees

Answer 30

Current Clients: Special Rules No sex with clients unless the relationship started before representation

Answer 31

Current Clients: Special Rules All these rules apply to the entire firm

Answer 32

Duties to Former Clients (a) Lawyers can’t represent someone new in a matter that’s the same or closely related to one for a former client if their interests clash—unless the former client agrees in writing

Answer 33

Duties to Former Clients (b) Lawyers who switch firms can’t take cases if they got confidential info at the old firm about a client whose interests are now opposed—unless the former client consents in writing

Answer 34

Duties to Former Clients (c) Lawyers can’t use or reveal former client info unless the rules allow it or the info is generally known

Answer 35

Imputation of Conflicts of Interest: General Rule (a) If one lawyer in a firm has a conflict under Rule 1.7 or 1.9, the whole firm is usually disqualified—unless: (1) The conflict is personal and doesn’t impact others (2) The conflict comes from a lawyer’s previous firm and: (i) The lawyer is screened (ii) Notice is given to the affected client (iii) Certifications of compliance are provided

Answer 36

Imputation of Conflicts of Interest: General Rule (b) When a lawyer leaves a firm, the firm can still take a case against the former client unless: (1) It’s the same or related matter, and (2) Someone at the firm still has relevant protected info

Answer 37

Imputation of Conflicts of Interest: General Rule (c) A client can waive disqualification with informed written consent

Answer 38

Imputation of Conflicts of Interest: General Rule (d) Conflicts involving government lawyers are governed by Rule 1.11

Answer 39

Special Conflicts for Former and Current Government Lawyers (a) A former government lawyer can't work on a matter they were personally and heavily involved in unless the agency consents in writing

Answer 40

Special Conflicts for Former and Current Government Lawyers (b) If disqualified, their new firm can still handle the matter if the lawyer is screened and no fee is shared

Answer 41

Special Conflicts for Former and Current Government Lawyers (c) Lawyers can't use confidential government info to help new clients

Answer 42

Special Conflicts for Former and Current Government Lawyers (d) Current government lawyers can't work on matters they were involved in during private practice unless the agency consents in writing; they also can’t job-hunt with parties involved in their current matters

Answer 43

Special Conflicts for Former and Current Government Lawyers (e) Defines what counts as a “matter”

Answer 44

Organization as Client (a) When representing a business or organization, the lawyer represents the entity, not the individuals who work for it

Answer 45

Organization as Client (b) If someone in the organization is breaking the law or duties and it could seriously harm the organization, the lawyer must act in its best interest and report to higher-ups

Answer 46

Organization as Client (c) If the top leadership refuses to act and the harm is serious, the lawyer may reveal information—even if confidentiality rules would normally prohibit it

Answer 47

Organization as Client (d) This does not apply to investigations or legal defense

Answer 48

Organization as Client (e) If fired or forced to withdraw for reporting misconduct, the lawyer must inform the organization’s leadership

Answer 49

Organization as Client (f) If the lawyer’s role is unclear, they must explain that the organization—not the person—is the client

Answer 50

Organization as Client (g) A lawyer may represent both the organization and an individual, but only if it doesn’t create a conflict under Rule 1.7 and proper consent is obtained

Answer 51

Imputation of Conflicts of Interest: General Rule (a) If one lawyer in a firm is conflicted under Rule 1.7 or 1.9, then the whole firm is also barred—unless: (1) The conflict is personal to that lawyer and doesn’t affect the others’ ability to represent the client; or (2) The conflict comes from the lawyer’s prior firm and: (i) The lawyer is screened off and receives no part of the fee; (ii) Written notice is given to the affected former client, with details about screening and compliance; (iii) The screened lawyer and a firm partner provide written certifications of compliance if requested.

Answer 52

Imputation of Conflicts of Interest: General Rule (b) A firm can take on a matter against a former client of a departed lawyer—unless: (1) It’s the same or a closely related matter; and (2) A remaining lawyer at the firm has protected information that’s important to the case.

Answer 53

Imputation of Conflicts of Interest: General Rule (c) Clients can waive conflicts under this rule if they give informed, written consent under Rule 1.7.

Answer 54

Imputation of Conflicts of Interest: General Rule (d) Conflicts involving government lawyers follow Rule 1.11.

Answer 55

Client with Diminished Capacity (a) Maintain a normal client-lawyer relationship as much as possible.

Answer 56

Client with Diminished Capacity (b) If the client can't protect themselves and is at risk, lawyer may take protective action (e.g., contact others, seek guardianship).

Answer 57

Client with Diminished Capacity (c) Info is confidential, but lawyer may reveal it as necessary to protect the client.

Answer 58

C Yes, because the lawyer may provide advice in an emergency even if the lawyer does not have the expertise that would ordinarily be required. Answer option C is correct. A lawyer is required to provide competent representation to a client. This means that the lawyer must have the legal knowledge, skill, and preparation that is reasonably necessary for the representation. See Model Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n 2016). However, in an emergency, a lawyer may give advice in a matter in which the lawyer does not have expertise provided the lawyer limits the advice to that which is reasonably necessary in the circumstances. See id. at r. 1.1 cmt. 3. Here, the former client is asking the lawyer to provide legal advice to the daughter. This makes the daughter the lawyer’s client (at least temporarily), and the lawyer had a duty to competently represent the daughter while providing that advice. Although the lawyer did not have the requisite criminal-law knowledge to provide general, long-term representation for the daughter, the lawyer was allowed to provide limited, necessary to the daughter in this emergency situation. Because the lawyer’s advice was limited to just immediate events and tailored to the daughter’s emergency situation, the lawyer’s conduct here was proper.Answer option A is incorrect because a lawyer without particular expertise may give limited advice in an emergency. Answer option B is incorrect because a lawyer giving emergency advice is not required to consult with an expert. Answer option D is incorrect because a lawyer does not owe a duty to assist a former client in a matter outside of the lawyer’s competence.

Answer 59

A Yes, because the lawyer did not identify the risks associated with his email-filtering system. Answer option A is correct. A lawyer’s duty to provide competent representation includes a duty to be knowledgeable about the benefits and risks associated with technology related to the practice of law. See Model Rules of Prof’l Conduct r. 1.1 cmt. 8 (Am. Bar Ass’n 2016). That means if a lawyer decides to use an email-filtering system, like a spam filter, then the lawyer has a duty to first identify the risks associated with the filtering system before using it, especially an automatic filtering system. The lawyer must then put enough safeguards in place to address those risks and ensure that the lawyer will receive all relevant email. The lawyer may also have a duty to independently monitor a court’s electronic docket to address the inherent risk of relying on a filtered email system for receiving court notices. See, e.g., Emerald Coast Util. Auth. v. Bear Marcus Pointe, 227 So.3d 752 (Fla. Dist. Ct. App. 2017). Here, there is no indication that this lawyer met his duty of identifying the high risk associated with an automatic email-filtering system before he used it, nor did he put any safeguards in place that would have prevented this type of filter problem. Thus, by failing to make himself knowledgeable about the risks of the technology he was using, the lawyer violated his duty to competently represent the client who suffered the default judgment.Answer option B is incorrect because the entry of a default judgment against a client, without more, does not mean that the lawyer was not competent. Answer option C is incorrect because the duty of competence required the lawyer to take steps to be knowledgeable about the order. The lawyer’s ignorance of the order is evidence of the lawyer’s violation of the duty of competence, not an excuse for missing a key deadline. Answer option D is incorrect because the lawyer is not allowed to wait for a reason to become knowledgeable about the risks of the technological systems he uses, like spam filters. Rather, as noted above, the duty of competence requires that a lawyer take steps to be knowledgeable about the risks of the technology he uses

Answer 60

C The lawyer may provide legal assistance outside of her area of expertise if, through study and reasonable preparation, she can achieve the requisite level of competence in the new area. Answer option C is correct. A lawyer is required to provide competent representation to a client. This means that the lawyer must have the legal knowledge, skill, and preparation that is reasonably necessary for the representation. See Model Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n 2016). A lawyer is not required to have special training or prior experience to handle unfamiliar legal matters. A lawyer may provide competent legal representation in a novel area through study and reasonable preparation. See id. at r. 1.1 cmts. 2 & 3. Therefore, here, the lawyer may provide legal assistance outside of her area of expertise (e.g., consumer cases for the legal-aid office) if she can achieve the requisite level of competence in the new area through study and reasonable preparation. Answer option A is necessarily incorrect because there are circumstances in which the lawyer may provide legal assistance outside of her area of expertise. Answer option B is incorrect because associating with a lawyer of established competence is only one way in which the lawyer may achieve competence in a new area; however, it is not the only way and it is not required. See id. at r.1.1 cmt. 2. Answer option D is incorrect because a lawyer has a duty of competence for all legal assistance rendered, whether or not for compensation.

Answer 61

A The lawyer learned that the third potential alibi witness had recently been convicted of perjury. Answer option A is correct. A lawyer must represent her client with reasonable diligence and care. See Model Rules of Prof’l Conduct r. 1.3 (Am. Bar Ass’n 2016). However, a lawyer has the professional discretion to determine how best to represent her client. See id. at r. 1.3 cmt. 1. Here, if the lawyer learned that the third potential alibi witness had been convicted for perjury, the lawyer could reasonably believe that the perjury conviction would eliminate this individual’s value as a witness no matter what he said. Thus, in that situation, the lawyer would have the discretion to choose to stop trying to contact this individual.Answer option B is incorrect because a lawyer is required to zealously advocate for her client, which means defending him even if she believes that he is guilty. See id. Answer option C is incorrect because a lawyer must control her workload in a way that allows her to represent all her clients competently. See id. at r. 1.3 cmt. 2. Answer option D is incorrect because a lawyer’s duty of diligence requires that she manage her time properly, act with reasonable promptness, and not procrastinate.

Answer 62

D The postponement was a reasonable request that did not prejudice the client. Answer option D is correct. A lawyer must represent clients with reasonable diligence and care. See Model Rules of Prof’l Conduct r. 1.3 (Am. Bar Ass’n 2016). A lawyer should act with reasonable promptness when representing a client. See id. at r. 1.3 cmt. 3. However, a lawyer’s duty of diligence does not prevent a lawyer from agreeing to a reasonable request for a postponement, provided the delay does not prejudice the client. See id.Answer option A is incorrect because, as noted above, a lawyer should act with reasonable promptness. See id. Without more, the fact that the lawyer would benefit from the extra preparation time is not the best support for the lawyer’s agreement to the postponement, especially if the lawyer needs more time because of the lawyer’s own poor time management, or if the delay would cause the client some other type of prejudice (e.g., the client must pay interest on the contract amount each day that passes until the dispute is resolved). Answer option B is incorrect because the lawyer owes a duty of diligence to his client regardless of opposing counsel’s needs. See id. at r. 1.3 cmt. 1. Answer option C is incorrect because the client’s agreement to the postponement does not necessarily mean the postponement is in the client’s best interests or that the delay will not prejudice the client. Thus, even if the client agreed to the postponement, the lawyer could still be violating his duty of diligence.

Answer 63

B Yes, because, after the trial judgment, the lawyer should have clarified that the lawyer-client relationship had terminated. Answer option B is correct. If a lawyer’s employment is limited to a specific matter, the relationship generally terminates when the matter has been resolved. Model Rules of Prof’l Conduct r. 1.3 cmt. 4 (Am. Bar Ass’n 2016). However, if a lawyer has served a client over a substantial period of time in a number of matters, the client may assume the lawyer will continue to serve, unless the lawyer provides notice of withdrawal. Id. Here, the lawyer had advised the plaintiff on a variety of transactional matters over the previous five years. At a minimum, after the trial judgment, the lawyer should have both: (1) clarified, preferably in writing, that the lawyer’s assistance had been limited to the trial proceedings and (2) advised the plaintiff to seek new counsel to pursue any appeal. See id. at r. 1.16(d) (advising lawyer to take reasonably practicable steps at the termination of the representation to protect a client’s interests, like giving reasonable notice and allowing time for employment of other counsel). Answer option D is necessarily incorrect for this same reason. Answer option A is incorrect because the Model Rules allow a lawyer to limit the scope of the lawyer’s representation in any manner reasonable under the circumstances, as long as the client gives informed consent to the limitation. See id. at r. 1.2(c). Answer option C is incorrect because any doubt about whether a client-lawyer relationship exists should be clarified by the lawyer, not the client, and ideally in writing

Answer 64

A Yes, the lawyer may purchase malpractice insurance for prospective malpractice claims. Answer option A is correct. Although most jurisdictions do not require it, a lawyer is allowed to purchase malpractice insurance for prospective malpractice claims. Some jurisdictions have interpreted the lawyer’s duty to communicate with clients to include a duty to disclose whether the lawyer carries malpractice insurance. See, e.g., Ohio Rules of Prof’l Conduct r 1.4(c) (2017).Answer option B is incorrect because whether the lawyer is or is not likely to commit malpractice is irrelevant. All lawyers may purchase malpractice insurance. Answer option C is incorrect because these duties do not prevent a lawyer from getting malpractice insurance. All lawyers, even those new to the practice, are required to represent their clients competently and diligently and to avoid committing legal malpractice to the best of their ability. See Model Rules of Prof’l Conduct r. 1.1 & 1.3 (Am. Bar Ass’n 2016). However, although lawyers are required to represent clients competently and diligently, lawyers may still get malpractice insurance to cover potential future claims alleging that the lawyer breached those duties. See id. Answer option D is incorrect because lawyers are not prohibited from trying to avoid personal financial liability for future malpractice claims.

Answer 65

C No, because the lawyer was required to keep the client reasonably informed. Answer option C is correct. A lawyer must keep a client reasonably informed about the status of the representation. See Model Rules of Prof’l Conduct r. 1.4(a)(3) (Am. Bar Ass’n 2016). The lawyer’s duty to keep the client reasonably informed is not limited to just information that is material to the lawsuit. Rather, the lawyer has a duty to inform the client about any matter that is appropriate for keeping the client reasonably informed. What is appropriate in a given case depends on the lawyer’s relationship with the client and the case itself. See id. at r. 1.4(a)(3) & cmt. 5. Further, a lawyer may not withhold information to serve the lawyer’s own interests. See id. at r. 1.4 cmt. 7. Here, the defendant was concerned about moving the case forward. Thus, keeping the defendant reasonably informed would include providing information about any deadline issues, even if they did not materially affect the ultimate issues in the case. Therefore, the lawyer’s failure to disclose the filing mistake to the defendant was an improper breach of the lawyer’s duty to keep this particular client reasonably informed.Answer option A is incorrect because avoiding a malpractice claim serves the lawyer’s own interest. As noted above, a lawyer may not withhold information from a client to serve the lawyer’s own interest. See id. at r. 1.4 cmt. 7. Answer option B is incorrect because a lawyer may have a duty to provide information that does not materially affect the case if the client reasonably expects to receive that information. See id. at r. 1.4(a)(3) & cmt. 5. Answer option D is incorrect because it is not clear that the lawyer committed malpractice. Although malpractice would be improper, there is no indication that the lawyer’s delay in filing the answer harmed the client in any way that would rise to the level of malpractice. Thus, the lawyer’s failure to inform the defendant about the filing mistake is the more clearly improper conduct here.

Answer 66

D Yes, because the lawyer should not have discontinued work on her pending matters. Answer option D is correct. A lawyer owes her clients the duty of diligent representation. Unless a lawyer’s representation of a client has been terminated, a lawyer should pursue client matters to their conclusion. Here, the lawyer violated her duty of diligence by not doing certain work on her clients’ cases while she still represented them. Answer option A is incorrect. A lawyer owes her clients the duty of diligent representation. Unless a lawyer’s representation of a client has been terminated, a lawyer should pursue client matters to their conclusion. Here, the lawyer correctly advised her clients that she would have to terminate her representation and explained that their cases would be reassigned to other attorneys in her firm. However, the lawyer was still bound to work diligently on her clients’ cases while she was representing them. Answer option B is incorrect. A lawyer owes her clients the duty of diligent representation. Unless a lawyer’s representation of a client has been terminated, a lawyer should pursue client matters to their conclusion. Here, the lawyer violated her duty of diligence by not doing certain work on her clients’ cases while she still represented them. Although the date at which she would begin her JAG duty was beyond her control, the lawyer was still obligated to work diligently while representing her clients. Answer option C is incorrect. A lawyer owes her clients the duty of diligent representation. Unless a lawyer’s representation of a client has been terminated, a lawyer should pursue client matters to their conclusion. No rule prohibits a lawyer from accepting a new position if doing so would require her to end representation of current clients. Lawyers frequently accept jobs, such as judicial appointments or government employment, that require them to terminate their current representation. Here, however, the lawyer violated her duty of diligence by not doing certain work on her clients’ cases while she still represented them.

Answer 67

B Yes, because the business owner did not have independent counsel to advise her about the engagement agreement. Answer option B is correct. Under the Model Rules of Professional Conduct, lawyers may prospectively limit their prospective malpractice liability. However, the client must have independent legal representation before agreeing to any such limitation. Here, the business owner was not independently represented by counsel. Therefore, the lawyer’s attempt to prospectively limit malpractice liability violates the Model Rules. Answer option A is incorrect. Under the Model Rules of Professional Conduct, lawyers may prospectively limit their prospective malpractice liability. However, the client must have independent legal representation before agreeing to any such limitation. This answer option incorrectly states that all limitations on prospective malpractice liability are prohibited. Such limitations are permissible, but only if the client has independent legal representation. Note that the Restatement (Third) of the Law Governing Lawyer differs from the Model Rules, providing that any agreement prospectively limiting a lawyer’s malpractice liability is unenforceable. However, the enforceability of the contractual waiver does not determine whether the lawyer is subject to discipline under the Model Rules. Answer option C is incorrect. Under the Model Rules of Professional Conduct, lawyers may prospectively limit their prospective malpractice liability. However, the client must have independent legal representation before agreeing to any such limitation. Here, the business owner was not independently represented by counsel. Therefore, even though the business owner had a reasonable amount of time to consider the agreement, the lawyer’s attempt to prospectively limit malpractice liability violates the Model Rules. Answer option D is incorrect. Under the Model Rules of Professional Conduct, lawyers may prospectively limit their prospective malpractice liability. However, the client must have independent legal representation before agreeing to any such limitation. Here, the business owner was not independently represented by counsel. Therefore, even though the business owner was experienced in legal matters, the lawyer’s attempt to prospectively limit malpractice liability violates the Model Rules.

Answer 68

A The investors were not the lawyer’s clients. Answer option A is correct. A lawyer may not make an agreement with a client that prospectively limits the lawyer’s liability for malpractice unless the client is independently represented in negotiating and entering the agreement. However, there is no such limitation with respect to a lawyer’s agreement with nonclients. Here, the fact that the investors were not the lawyer’s clients would provide strong support for a finding that the lawyer’s agreement asking the investors to waive potential malpractice claims was proper. Answer option B is incorrect. A lawyer may not make an agreement with a client that prospectively limits the lawyer’s liability for malpractice unless the client is independently represented in negotiating and entering the agreement. However, there is no such limitation with respect to a lawyer’s agreement with nonclients. Whether a party was likely to have any future malpractice claims against a lawyer is irrelevant to determining whether a contractual waiver of future claims is proper. What is relevant is whether the party agreeing to waive prospective malpractice claims is a client or not. Here, the investors were not clients, making the waiver proper. Answer option C is incorrect. A lawyer may not make an agreement with a client that prospectively limits the lawyer’s liability for malpractice unless the client is independently represented in negotiating and entering the agreement. However, there is no such limitation with respect to a lawyer’s agreement with nonclients. Here, the fact that the investors were sophisticated parties is irrelevant. The Model Rules require that any client signing a malpractice waiver be independently represented in negotiating and entering the agreement. Rather, the fact that the investors were not the lawyer’s clients would provide strong support for a finding that the lawyer’s agreement asking the investors to waive potential malpractice claims was proper. Answer option D is incorrect, because a lawyer’s inability to obtain sufficient malpractice insurance to insulate the lawyer from all potential malpractice claims is not relevant to whether the lawyer may enter into an agreement limiting the lawyer’s liability for prospective malpractice claims. Here, the fact that the investors were not the lawyer’s clients would best provide support for a finding that the lawyer’s agreement asking the investors to waive potential malpractice claims was proper.

Answer 69

C The lawyer should call the client immediately to tell the client about the unfavorable summary-judgment rulings and discuss a plan to prepare for trial. Answer option C is correct. Rule 2.1 of the Model Rules of Professional Conduct requires a lawyer to, among other things, offer candid advice to a client. Rule 1.4 requires the lawyer to keep the client reasonably informed about the status of the matter. In light of the high stakes involved in the litigation and the impending trial date, the best course of action for the lawyer to take is to call the client immediately regarding the unfavorable summary-judgment rulings. Answer options A and D are therefore necessarily incorrect, because both involve waiting until Monday to inform the client. Answer option B is incorrect, because the lawyer’s Friday call to the client should candidly inform the corporation of the loss and discuss next steps to prepare for trial. Comment 1 to Rule 2.1 observes, “Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.” However, a lawyer must put his advice “in as acceptable a form as honesty permits.” Here, the lawyer’s initial review of the court’s rulings revealed no obvious legal or factual errors. Therefore, the lawyer should not attempt to sugarcoat the sting of the unfavorable rulings by discussing potential reconsideration.

Answer 70

B The lawyer should explain to the driver that the lawyer represents the bakery, not the driver, and, therefore, that the lawyer’s conversations with the driver may not be privileged. Answer option B is correct. In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer representing the organization must explain the identity of the lawyer’s client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing. r. 1.13(f) & cmt. 10 The Model Rules recommend that the lawyer carefully explain that, due to the conflict: (1) the lawyer cannot represent the constituent and (2) their conversations may not be privileged. Id. at cmt. 10.Here, the delivery-truck driver is an employee of the bakery, the lawyer’s organizational client. The fact that the accident occurred while the driver was not following his route but was instead on his way to his mother’s house indicates that the bakery may be able to disclaim liability for the accident (because the driver was on a frolic-and-detour). Therefore, once the lawyer learned this information, the lawyer reasonably should have known that the driver’s interests are adverse to the bakery’s. This means that the lawyer must explain to the driver that his client is the bakery, not the driver, and, therefore, that the lawyer’s conversations with the driver may not be privileged due to the conflict in interests. Answer option D is incorrect because reporting the information is not the next step. The lawyer must clarify whom the lawyer represents to the employee driver before the lawyer reports the information to the lawyer’s client, the bakery. Answer options A and C are incorrect because in each, the lawyer is providing legal advice about the driver’s potential liability. If a nonclient constituent of an lawyer’s organizational client (e.g., an employee) is not otherwise represented and the constituent’s interests are or have a reasonable possibility of being in conflict with the organization’s interests, then the only advice that a lawyer should give that constituent is the advice to obtain independent counsel. Thus, now that the lawyer is aware or reasonably should be aware of the conflict between the driver’s interests and the organization’s, the lawyer may not give the driver any legal advice other than advice to obtain his own counsel.

Answer 71

D No, because the manager agreed to formulate a different proposal. Answer option D is correct. A lawyer representing an organization has a duty to proceed as reasonably necessary in the organization’s best interests. Model Rules of Prof’l Conduct r. 1.13(b) (Am. Bar Ass’n 2016). In general, this means that a lawyer for an organization must refer a matter to a higher authority within the organization if the lawyer actually knows: (1) that an officer, employee, or other person associated with the organization is acting (or refusing to act) in a manner that violates the law; (2) that action (or inaction) might reasonably be imputed to the organization; and (3) the conduct is likely to result in a substantial injury to the organization. Id. at r. 1.13(b) & cmt. 4. However, the Model Rules acknowledge that referring the matter to a higher authority is not always necessary if the lawyer may reasonably conclude that a referral would not serve the organization’s best interests. Id. Here, after hearing the lawyer’s explanation, the manager had agreed to revise her proposal in light of the correct understanding of the law. Thus, the proposal may not be likely to cause any actual harm, and the lawyer is only required to report conduct that is likely to cause substantial harm. In addition, the lawyer may reasonably conclude that referring concerns about the essentially discarded proposal to a higher authority would not serve the corporation’s best interests. Answer options A and B are necessarily incorrect for this same reason.Answer option C is incorrect because the seriousness of the resulting consequences is just one factor that a lawyer might consider. In determining how and whether to act as reasonably necessary in the organization’s best interests, an organization’s lawyer should consider: (1) the seriousness of the violation and its consequences, (2) the apparent motivation of the person involved and that person’s responsibility in the organization, (3) the organization’s policies concerning such matters, and (4) any other relevant consideration. Id. at r. 1.13 cmt. 4. Here, the corporation’s existing policy mandates a pre-employment citizenship check, in part to avoid the violations of law that the lawyer raised in response to the manager’s proposal. The fact that the corporation could afford any resulting fine if the manager was still considering the illegal proposal, while relevant, does not alter the lawyer’s duty to advise his client to act within the bounds of the law.

Answer 72

C The lawyer must inform the agency’s executive committee about the firing and the proposed campaign. Answer option C is correct. If a lawyer reasonably believes that she has been discharged because of actions taken as reasonably necessary in an organizational client’s best interests to avoid substantial injury from an intended illegal course of conduct, then the lawyer must proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge. Model Rules of Prof’l Conduct r. 1.13(e) (Am. Bar Ass’n 2016). Here, the lawyer had represented the agency but was fired after raising objections about the agency making illegal advertising claims that were likely to cause substantial injury to the agency. The Model Rules require the lawyer to inform the agency’s highest authority, the executive committee, about the lawyer’s firing and the proposed illegal campaign. Answer option D is necessarily incorrect for this same reason. This particular duty to the organizational client continues even after the lawyer has been discharged as the organization’s representative.Answer options A and B are incorrect because each involve public disclosure of information related to the representation, which is not permitted on these facts. Rule 1.13(c) permits a lawyer to disclose information related to the representation, despite Rule 1.6’s confidentiality protections—but only after the lawyer has referred the matter to the organization’s highest authority, and the highest authority persists in a course of conduct that is a clear violation of law likely to result in substantial injury. Id. at r. 1.13(c). Here, the lawyer has not yet informed the agency’s executive committee, which is the highest authority in the agency. Therefore, Rule 1.13(c) does not give the lawyer a basis to disclose information relating to the representation yet.

Answer 73

D Only if either there is no conflict of interest or the organization and the officer both provide informed consent to any conflict of interest. Answer option D is correct. The Model Rules of Professional Conduct permit a lawyer to represent both an organization and one of the organization’s officers as long as the representation complies with Rule 1.7’s limitations regarding conflicts of interest. Model Rules of Prof’l Conduct r. 1.13(g) (Am. Bar Ass’n 2016). Therefore, a lawyer may represent both an organization and one of its officers if either: (1) there is no conflict of interest or (2) both the organization and the officer provide informed consent to any conflict of interest. See id. & r. 1.7(b).Answer options A and B are incorrect because informed consent is not the only way that the dual representation could be proper. Rather, the dual clients (here, the organization and the officer) need to give informed consent only if the dual representation poses a concurrent conflict of interest under Rule 1.7. See id. If there is no conflict of interest, then neither client’s informed consent is necessary to proceed with the dual representation. Answer option C is incorrect because the lack of a conflict of interest is not the only way that the dual representation could be proper. A lawyer may engage in the dual representation even with a concurrent conflict of interest if, under Rule 1.7(b), both clients provide informed consent in writing. Id. The clients’ informed consent is sufficient to overcome any conflict of interest provided that: (1) the lawyer reasonably believes the lawyer can provide competent and diligent representation to both the organization and client, (2) the dual representation is not otherwise prohibited by law, and (3) the representation will not involve the assertion of a claim by one client against another represented by the lawyer in the same proceeding or litigation. Id. at r. 1.7(b).

Answer 74

C Yes, because for organizational clients, the attorney-client privilege applies to all employees who provide factual information to the general counsel necessary for legal advice. Answer option C is correct. The attorney-client privilege prevents disclosure of communications between a lawyer and the lawyer’s client. If the client is an organizational client, such as a corporation, the attorney-client privilege applies to all employees who provide factual information to the lawyer necessary for legal advice. Here, the lawyer sought information from the corporation’s employees about whether any of them knew about illegal payments made to foreign governments. The purpose of this inquiry was to obtain information necessary for the lawyer to best represent the corporation. Therefore, the communication by the low-level employee to the general counsel is protected by the attorney-client privilege. Answer option A is incorrect. The attorney-client privilege prevents disclosure of communications between a lawyer and the lawyer’s client. If the client is an organizational client, such as a corporation, the attorney-client privilege applies to all employees who provide factual information to the lawyer necessary for legal advice. This answer option states a generally correct but inapplicable rule. The attorney-client privilege does not protect preexisting documents. That is, a client cannot shield a document from discovery merely by providing it to the attorney. Here, however, the employee did not give an existing document to the general counsel, but rather responded to a questionnaire. The employee’s response is thus protected by the attorney-client privilege, the same as if the employee has orally answered a question from the general counsel. Answer option B is incorrect. The attorney-client privilege prevents disclosure of communications between a lawyer and the lawyer’s client. If the client is an organizational client, such as a corporation, the attorney-client privilege applies to all employees who provide factual information to the lawyer necessary for legal advice. This answer option incorrectly states that the attorney-client privilege applies only to communications between an attorney and high-level employees with decision-making authority. Although constituents of an organization are not clients of an attorney representing the corporation, communication with all constituents of an organization is protected by the attorney-client privilege if the communication otherwise satisfies the requirements for privilege. Answer option D is incorrect. The attorney-client privilege prevents disclosure of communications between a lawyer and the lawyer’s client. If the client is an organizational client, such as a corporation, the attorney-client privilege applies to all employees who provide factual information to the lawyer necessary for legal advice. The attorney-client privilege does not protect documents prepared by a lawyer in anticipation of litigation. Rather, such documents are protected by the work-product doctrine. Regardless, that doctrine is inapplicable here, because the document at issue was not prepared by the general counsel, and nothing indicates that it was prepared in anticipation of litigation. Rather, the document was a response to a request for information by the general counsel to assist in his representation of the corporation. Therefore, the employee’s response is protected by the attorney-client privilege.

Answer 75

B The lawyer must provide the client promptly with a third-party accounting of the lawyer’s fees and expenses. Answer option B is correct. Rule 1.15 of the Model Rules of Professional Conduct details a lawyer’s ethical duties with respect to the safekeeping of a client’s property. See Model Rules of Prof’l Conduct r. 1.15 (Am. Bar. Ass’n 2016). The rule requires that a lawyer deposit all client funds into the lawyer’s client trust account and maintain books and records of the account in accordance with generally accepted accounting practices. Id. at r. 1.15(b) cmt. 1. The rule does not require that the lawyer employ a third party to account for the lawyer’s fees and expenses. Therefore, answer option B is correct. Answer option A is incorrect because Rule 1.15(b) requires that the lawyer deposit the funds in the lawyer’s client trust account. Id. at r. 1.15. Answer option C is incorrect because the lawyer must ensure that the funds being disbursed from the account are funds belonging to that particular client and fees and expenses on that client’s behalf, which means the settlement check must first clear. Answer option D is incorrect because the rule requires the prompt disbursement of funds to the client

Answer 76

C No, because the lawyer was permitted to draw funds from the flat fee only as the fee was earned or expenses incurred. Answer option C is correct. Rule 1.15(c) of the Model Rules of Professional Conduct provides that lawyers must deposit all legal fees and expenses paid in advance into a client trust account and may withdraw fees and expenses only as earned or incurred. Model Rules of Prof’l Conduct r. 1.15(c) (Am. Bar. Ass’n 2016). Here, the lawyer requested payment in full prior to earning the fees. Therefore, the lawyer should have deposited the fee into his client trust account and withdrawn it only as it was earned. Answer option A is incorrect because although the fee was paid in full in advance of the representation, none of the fee had been earned, and therefore the funds should have remained in the client trust account. Answer option B is incorrect because no portion of the fee had been earned at all. Answer option D is incorrect because the ethical rules do not prohibit a lawyer from charging a flat fee for a criminal representation.

Answer 77

C No, because storing funds in a safety deposit box does not fulfill the requirement in the Model Rules that client funds be maintained separately. Answer option C is correct. Model Rule of Professional Conduct 1.15(a) requires that client funds in the lawyer’s possession be maintained separately from the lawyer’s own property in a separate account. Model Rules of Prof’l Conduct, r. 1.15(a) (Am. Bar Ass’n 2016). Maintaining client funds in a safe, safety deposit box, filing cabinet, or similar storage device does not usually satisfy the requirements of the Model Rules. See Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, Client Trust Account Handbook 1, 7 (April 2018), https://www.iardc.org/clienttrustaccounthandbook.pdf. Separately maintaining client funds and property means that the method of storage must leave no doubt that the funds do not belong to the lawyer and are instead merely being held by the lawyer on the client’s behalf. Id. Covert storage methods leave room for doubt and negative inferences about how the funds were used and increase the risk that client funds could be misappropriated. Id. Therefore, the safety deposit box here does not satisfy the requirements of Model Rule 1.15(a) to maintain client funds separately, because such covert methods of storage are not truly separate within the meaning of the rule. Even though the funds would be held in an envelope with the husband’s name on it, the safety deposit box would be held in the lawyer’s name at the bank. This could create doubt as to whether the contents of the safety deposit box belonged to the lawyer or to the husband. Moreover, as a practical matter, if the lawyer died or became incapacitated, the husband would be unable to access his funds. See id.Answer options A and B are incorrect because merely recording the client’s name and the dates on which the lawyer visited the safety deposit box would not comply with the lawyer’s duty to maintain complete records under Model Rule 1.15(a). See Model Rules of Prof’l Conduct, r. 1.15(a). The Model Rules require lawyers to maintain current books and records in accordance with generally accepted accounting practices. Id. at r. 1.15(a) cmt. 1. At a minimum, this would include records of not only the client name and transaction date, but also the amount and purpose of any withdrawal or deposit. See, e.g., Model Rules for Client Trust Account Records, r. 1(a) (Am. Bar Ass’n 2010). Answer option D is incorrect because the Model Rules do not prohibit a lawyer from accepting cash payments from a client.

Answer 78

D No, because the lawyer may not forward the painting until the dispute is resolved. Answer option D is correct. When a lawyer is in possession of property in which two or more persons claim interests that are not frivolous, the lawyer must keep any property subject to dispute separate until the dispute is resolved, but the lawyer must promptly distribute any portions of the property as to which the interests are undisputed. Model Rules of Prof’l Conduct, r. 1.15(e) & cmt. 4 (Am. Bar Ass’n 2016). Therefore, the lawyer here is not subject to discipline for refusing to hand over the painting to the elder brother. Both brothers claim conflicting interests in the painting, and the facts do not suggest that either brother’s claim is frivolous. Therefore, the lawyer acted properly in retaining the painting until the brothers resolve their dispute. Answer option A is necessarily incorrect for the same reason. Answer option B is incorrect because a lawyer is required to provide an accounting only if requested by the client or third party claiming an interest in the property or funds held by the lawyer. See id. at r. 1.15(d). Answer option C is incorrect because the lawyer’s duties in this regard apply not only to property in which clients claim interests, but also to property in which any person, including a non-client third party, claims an interest

Answer 79

C No, because the lawyer has not yet earned any legal fees. Answer option C is correct. A lawyer may withdraw advance payments made by clients only as legal fees are earned or expenses incurred. Model Rules of Prof’l Conduct, r. 1.15(c) (Am. Bar Ass’n 2016). Therefore, the lawyer here may not withdraw funds from the client trust account at the beginning of the month because the lawyer has not yet earned those fees by performing work for the business client. Answer option A is necessarily incorrect for the same reason. Answer option B is incorrect because the fact that the lawyer does not plan to ultimately withdraw more than what she has earned is not relevant. By withdrawing funds before she has actually performed work for the client, the practitioner has violated the Model Rules, even if she performs the actual work required to earn those fees later in the month.Answer option D is incorrect because the Model Rules permit a lawyer to withdraw payments made in advance from a client trust account only when the legal fees have been earned or the expenses have been incurred. The client’s permission to withdraw the funds does not alter the standards in the Model Rules for maintaining client trust accounts. Moreover, if the lawyer sought a loan or a gift from the client, Model Rule 1.8 would require more than just the client’s consent. See id. at r. 1.8(a), (c). For a loan, the lawyer must advise the client in writing of the desirability of seeking independent counsel; the transaction’s terms must be fair, reasonable, and fully committed to writing; and the client must provide informed consent in a signed writing to the loan’s essential terms and the lawyer’s role in the transaction. Id. at r. 1.8(a). A gift would be permissible only if the lawyer were related to the client

Answer 80

D No, because the lawyer may not keep his own funds in the client trust account in excess of the amount required to pay the account’s bank service charges. Answer option D is correct. The only circumstances in which a lawyer is permitted to deposit or store his own funds in a client trust account is to pay bank service charges on the account, and even then only in an amount necessary for that purpose. Model Rules of Prof’l Conduct, r. 1.15(b) & cmt. 2 (Am. Bar Ass’n 2016). Here, the portion of the settlement funds the lawyer is entitled to retain exceeds the bank service charges on the account. Therefore, the Model Rules do not permit the lawyer to keep his entire portion of the settlement funds in the client trust account as a savings strategy. Answer option A is incorrect because the lawyer’s detailed records do not prevent his own funds from being impermissibly commingled with the client’s in the trust account. Answer option B is incorrect because a lawyer may commingle his own funds with a client’s in a trust account only in an amount necessary to cover the bank service charges; here, the lawyer’s portion of the settlement funds exceeds that amount. Answer option C is incorrect because the lawyer is permitted to commingle his funds with the client’s in a trust account for the sole purpose of covering bank service charges.

Answer 81

B The lawyer may transfer the legal fees earned from the client trust account to the lawyer’s business account, then pay half the utility bill from the business account. Answer option B is correct. A lawyer must hold client property, such as advance funds paid by a client before legal services have been rendered, separately from a lawyer’s own property. Model Rules of Prof’l Conduct, r. 1.15(a) (Am. Bar Ass’n 2016). A lawyer may withdraw funds paid in advance that are being maintained separately in a client trust account as the lawyer earns legal fees or incurs expenses. Id. at r. 1.15(b). Therefore, the most appropriate course of action for the lawyer here is to transfer the amount of legal fees he has earned from the client trust account to the lawyer’s business account, then pay half the utility bill from the lawyer’s business account.Answer option A is incorrect for two reasons. First, legal fees earned are the lawyer’s property and may not be stored in the client trust account. See id. at r. 1.15(a). Rather, legal fees earned properly belong in the lawyer’s business account. Id. at r. 1.15(b). Second, the balance of the business account is insufficient to cover half the utility bill the lawyer agreed to pay. Answer options C and D are incorrect because the lawyer may not pay firm overhead expenses from the client trust account. Any funds in the client trust account that the lawyer has earned by performing legal work should be promptly transferred to the business account to avoid improper commingling of the lawyer’s property with the client’s property. Id. at r. 1.15(a). The lawyer’s business expenses, such as utility bills incurred by his law office, must be paid from the lawyer’s own funds in the business account. Answer option D is also incorrect because it would require the lawyer to withdraw funds from the client trust account before he has earned legal fees, as the facts state that the amount of fees earned to date are inadequate by themselves to pay for half the utility bill.

Answer 82

A Yes, because the attorney used client funds for a personal purpose. Answer option A is correct. Under Model Rule 1.15, a lawyer must keep client funds separate from her own. Model Rules of Prof’l Conduct r. 1.15 (Am. Bar Ass’n 2016). Here, the attorney could not use the client’s funds to give herself a loan. Answer option B is incorrect because simply talking to the client beforehand would not change the analysis. Importantly, answer option B does not state anything about obtaining the client’s consent. Answer option C is incorrect because the attorney had already violated the Model Rules before the client consented to the loan. Answer option D is incorrect because the fact that the attorney paid the money back very quickly does not change the fact that she had already violated the Model Rules by taking the money.

Answer 83

A Yes, because the attorney did not withdraw her fees as billed. Answer option A is correct. Under Model Rule 1.15(c), “[a] lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.” Model Rules of Prof’l Conduct r. 1.15(c) (Am. Bar Ass’n 2016). Once the attorney earned fees, the attorney should have withdrawn them from the trust account because those funds no longer belonged to the client. Answer options C and D are incorrect for that reason. Answer option B is incorrect because an attorney may request advance payments.

Answer 84

A Yes, because the attorney deposited the check into her personal account. Answer option A is correct. Under Model Rule 1.15(a), a lawyer must hold a client’s property separate from the lawyer’s property. Model Rules of Prof’l Conduct r. 1.15(a) (Am. Bar Ass’n 2016). Consequently, it was improper for the attorney to deposit the check into her personal account. Answer option B is incorrect because the issue here is the commingling of the client’s and lawyer’s funds, not the fact that the attorney subtracted her fee. Answer options C and D are incorrect because neither fact would make the attorney’s actions proper.

Answer 85

B Yes, because the company’s funds were not protected by insurance. Answer option B is correct. “A lawyer should hold property of others with the care required of a professional fiduciary.” Model Rules of Prof’l Conduct r. 1.15 cmt. 1 (Am. Bar Ass’n 2016). Thus, the attorney should have taken measures to ensure the company’s funds were protected by insurance. Answer option A is incorrect because the attorney would still have failed to act as a fiduciary even if the company’s funds were not lost. Answer option C is incorrect because the attorney’s duty to protect funds extends to both clients and third persons. See id. at r. 1.15(a). Answer option D is incorrect because the attorney would not be excused for his actions simply because the bank failure was not his fault.

Answer 86

A Yes, because the lawyer commingled his own funds with the client’s. Answer option A is correct. The only purpose for which a lawyer may commingle his own funds with a client’s in a trust account is to pay bank service charges for the account, and then only in an amount necessary to pay the charges. A lawyer may not deposit additional funds for the purpose of establishing a cushion of funds to pay fees or prevent overdrafts. Here, the lawyer here is subject to discipline because he improperly commingled his own funds with the client’s in the client trust account. Although the lawyer was permitted to put his own funds in the trust account, he could not put in more money than was necessary to pay bank fees. Answer option B is incorrect. The only purpose for which a lawyer may commingle his own funds with a client’s in a trust account is to pay bank service charges for the account, and then only in an amount necessary to pay the charges. A lawyer may not deposit additional funds for the purpose of establishing a cushion of funds to pay fees or prevent overdrafts. Here, the lawyer here is subject to discipline because he improperly commingled his own funds with the client’s in the client trust account. The client’s consent to the lawyer’s actions is irrelevant, because the client cannot consent to the lawyer’s commingling of funds in violation of the Model Rules of Professional Conduct. Answer option C is incorrect. The only purpose for which a lawyer may commingle his own funds with a client’s in a trust account is to pay bank service charges for the account, and then only in an amount necessary to pay the charges. A lawyer may not deposit additional funds for the purpose of establishing a cushion of funds to pay fees or prevent overdrafts. Here, the lawyer here is subject to discipline because he improperly commingled his own funds with the client’s in the client trust account. Although the lawyer was permitted to put his own funds in the trust account, he could not put in more money than was necessary to pay bank fees. Answer option D is incorrect. The only purpose for which a lawyer may commingle his own funds with a client’s in a trust account is to pay bank service charges for the account, and then only in an amount necessary to pay the charges. A lawyer may not deposit additional funds for the purpose of establishing a cushion of funds to pay fees or prevent overdrafts. Here, the lawyer here is subject to discipline because he improperly commingled his own funds with the client’s in the client trust account. Misappropriation of client funds is a separate, and likely more serious, ethical violation, but a lawyer can be subject to discipline for improperly commingling funds even without bad intent or harm to the client.

Answer 87

B If the lawyer determines that the coworker’s claim to the funds is frivolous. Answer option B is correct. If two or more persons claim an interest in property in a lawyer’s possession, the Model Rules of Professional Conduct require the lawyer to keep the disputed property separate and promptly disburse any property as to which the interests are undisputed. However, not all allegedly conflicting interests require the lawyer to segregate and refuse to disburse funds or property to a client until a dispute is resolved. Rather, a lawyer may refuse to surrender property to a client until disputed claims are resolved only if the third-party claim is not frivolous. Here, if the lawyer determines that the coworker’s claim is frivolous, the lawyer may disburse the funds to the client. Answer option A is incorrect. If two or more persons claim an interest in property in a lawyer’s possession, the Model Rules of Professional Conduct require the lawyer to keep the disputed property separate and promptly disburse any property as to which the interests are undisputed. However, not all allegedly conflicting interests require the lawyer to segregate and refuse to disburse funds or property to a client until a dispute is resolved. Rather, a lawyer may refuse to surrender property to a client until disputed claims are resolved only if the third-party claim is not frivolous. Here, there are circumstances in which the lawyer can disburse the funds to the client despite the coworker’s claim. The lawyer can disburse the funds if the coworker’s claim is frivolous. Answer option C is incorrect. If two or more persons claim an interest in property in a lawyer’s possession, the Model Rules of Professional Conduct require the lawyer to keep the disputed property separate and promptly disburse any property as to which the interests are undisputed. However, not all allegedly conflicting interests require the lawyer to segregate and refuse to disburse funds or property to a client until a dispute is resolved. Rather, a lawyer may refuse to surrender property to a client until disputed claims are resolved only if the third-party claim is not frivolous. Here, the lawyer cannot disburse the funds merely because the lawyer has determined that the coworker’s claim should not succeed. Lawyers should not independently arbitrate disputes. Rather, the lawyer may disburse the funds only if the coworker’s claim is frivolous, not merely unlikely to succeed. Answer option D is incorrect. If two or more persons claim an interest in property in a lawyer’s possession, the Model Rules of Professional Conduct require the lawyer to keep the disputed property separate and promptly disburse any property as to which the interests are undisputed. However, not all allegedly conflicting interests require the lawyer to segregate and refuse to disburse funds or property to a client until a dispute is resolved. Rather, a lawyer may refuse to surrender property to a client until disputed claims are resolved only if the third-party claim is not frivolous. Here, the lawyer cannot automatically disburse the funds just because the lawyer owes a duty of loyalty to the client. The lawyer must generally not disburse the funds if interest in the funds is disputed. However, the lawyer may disburse the funds if the lawyer determines that the coworker’s claim is frivolous.

Answer 88

A Yes, because a lawyer may not deposit personal funds into a client trust account except to pay bank service charges on the account. Answer option A is correct. Lawyers must maintain client trust accounts to hold client funds, separate from the lawyer’s own funds and operating expenses. Rule 1.15 of the Model Rules of Professional Conduct permits a lawyer to deposit the lawyer’s own funds into a client trust account only to pay bank service charges on that account. Here, the lawyer has violated the rules by depositing his personal funds into the client trust account. A lawyer is prohibited from depositing the lawyer’s personal funds into a client trust account for any purpose other than paying bank service charges, including avoiding attachment of the lawyer’s personal funds. Answer option B is incorrect. Lawyers must maintain client trust accounts to hold client funds, separate from the lawyer’s own funds and operating expenses. Rule 1.15 of the Model Rules of Professional Conduct permits a lawyer to deposit the lawyer’s own funds into a client trust account only to pay bank service charges on that account. Here, having a client trust account with no balance is not a violation of the ethical rules. Rather, it would violate the ethical rules for the lawyer to keep a small balance as a cushion in the trust account. Here, the lawyer the lawyer violated the rules by depositing personal funds in his trust account to avoid garnishment. Answer option C is incorrect. Lawyers must maintain client trust accounts to hold client funds, separate from the lawyer’s own funds and operating expenses. Rule 1.15 of the Model Rules of Professional Conduct permits a lawyer to deposit the lawyer’s own funds into a client trust account only to pay bank service charges on that account. Here, although the lawyer did not appropriate client funds as his own, he has still violated the ethical rules by depositing his personal funds into the client trust account. A lawyer is prohibited from depositing the lawyer’s personal funds into a client trust account for any purpose other than paying bank service charges, including avoiding attachment of the lawyer’s personal funds. Answer option D is incorrect. Lawyers must maintain client trust accounts to hold client funds, separate from the lawyer’s own funds and operating expenses. Rule 1.15 of the Model Rules of Professional Conduct permits a lawyer to deposit the lawyer’s own funds into a client trust account only to pay bank service charges on that account. Here, although the lawyer did not intermingle client funds with his own, he has still violated the ethical rules by depositing his personal funds into the client trust account. A lawyer is prohibited from depositing the lawyer’s personal funds into a client trust account for any purpose other than paying bank service charges, including avoiding attachment of the lawyer’s personal funds.

Answer 89

D A client wrote her attorney an email that detailed her timeline of the events leading up to her arrest. Answer option D is correct. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. See Upjohn Co. v. United States, 442 U.S. 383 (1981). Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Id. at 389. A client’s email to her attorney reciting the events leading up to her arrest is a communication made for the purpose of obtaining legal advice and is therefore privileged. Answer option A is incorrect because communications between a third party, like a client’s spouse, and a lawyer are not communications with a client or prospective client. Therefore, the wife’s communications with her husband’s attorney are not privileged. Answer option B is incorrect because the client’s communication to the attorney about investment strategy is seeking financial advice, rather than legal advice, and does not satisfy the purpose element of the attorney-client privilege. Answer option C is incorrect because the employee is not seeking legal advice on his own behalf when telling the company attorney about discriminatory practices and therefore does not satisfy the purpose element. Although in some instances an employee may be included in the umbrella of attorney-client privilege between a company and its attorney, the communication must have been made for the purpose of obtaining legal advice. Therefore, the employee’s communication is likely not privileged here.

Answer 90

D No, because the conversation was conducted in the presence of others. Answer option D is correct. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. See Upjohn Co. v. United States, 442 U.S. 383 (1981). Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Id. at 389. The privilege may be broken, however, if the client intentionally discusses the protected communication with others or if the communication occurs in the presence of others. See United States v. United Shoe Mach. Corp., 89 F. Supp 357, 358-59 (D.Mass. 1950). Here, although the communication satisfied the three requirements for the privilege to apply, the privilege was broken because it the conversation occurred in the presence of a third party—opposing counsel’s paralegal. Answer options A and B are necessarily incorrect for that reason. Answer option C is incorrect because the attorney-client privilege would protect a conversation about a lawyer’s strategy to minimize the effect of incriminating evidence even if the evidence itself were not privileged, but not if the privilege was broken by the presence of a third party.

Answer 91

B The fact that a plaintiff in a medical-malpractice action has asthma, which he disclosed to his attorney during his initial consultation. Answer option B is correct. The work-product doctrine protects from disclosure tangible materials, or their intangible equivalents, that were prepared either by or for a lawyer in anticipation of litigation. See Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947). The doctrine does not, however, protect from disclosure facts learned by the lawyer in the course of preparing for litigation. See Restatement (Third) of the Law Governing Lawyers §87(1) (2000). Therefore, the fact that the attorney’s client has asthma is not itself protected by the work-product doctrine. Answer option A is incorrect because a memorandum prepared for litigation by a paralegal for an attorney falls within the work-product doctrine’s protection. Answer option C is incorrect because an attorney’s notes from his phone call with a specialist that was related to preparing for his client’s litigation falls within the work-product doctrine’s protection. Answer option D is incorrect because a recorded voice memo of an attorney’s reminders to himself about litigation strategy falls within the work-product doctrine’s protection.

Answer 92

A The material sought is indispensable for substantiating or refuting a litigation claim and available only through discovery. Answer option A is correct. The work-product doctrine protects from disclosure during discovery tangible materials, or their intangible equivalents, that were prepared either by or for a lawyer in anticipation of litigation. See Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947). The doctrine does not, however, provide absolute protection for the materials. An opponent may overcome the doctrine’s protection by demonstrating undue hardship, namely that the materials sought are indispensable to either refuting or substantiating a claim and available only through the discovery process. Id. Answer options B, C, and D are incorrect for that reason and because each states an insufficient reason to abrogate the work-product doctrine’s protection.

Answer 93

D The memo was prepared to assist in determining how to prevent similar future accidents. Answer option D is correct. The work-product doctrine protects from disclosure during discovery tangible materials, or their intangible equivalents, that were prepared either by or for a lawyer in anticipation of litigation. See Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947). If the memo was prepared for a nonlitigation purpose, such as prevention of similar future accidents, the work-product doctrine does not protect it. Answer options A, B, and C are incorrect because each states a criterion that would support finding the memo protected by the work-product doctrine.

Answer 94

C Yes, because the materials were prepared by the attorney in anticipation of litigation. Answer option C is correct. The work-product doctrine protects from disclosure during discovery tangible materials, or their intangible equivalents, that were prepared either by or for a lawyer in anticipation of litigation. See Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947). The doctrine recognizes that these types of materials can give opponents an unfair advantage in litigation by revealing an attorney’s strategy or key facts. Id. The doctrine protects the attorney’s work-product regardless of whether it was prepared in advance of the instant litigation or in advance of prior litigation. If the material was prepared by or for an attorney, in anticipation of litigation, the material is protected. Answer option A is incorrect because, as noted above, the doctrine’s focus is on the attorney, not on the client. If the materials were prepared by an attorney in anticipation of litigation, the doctrine applies regardless of whether the materials are used for a different client. Answer option B is incorrect because the doctrine applies to any material prepared by an attorney in anticipation of litigation, regardless of whether the material concerned a particular witness or overall litigation strategy. Answer option D is incorrect because the doctrine likewise applies regardless of whether the attorney prepared the materials for the same witness. What is determinative is whether the materials were prepared by or for an attorney in anticipation of litigation.

Answer 95

C No, because the accountant would not be reasonably likely to ascertain the client’s identity or situation involved from the hypothetical. Answer option C is correct. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. Model Rules Prof’l Conduct r. 1.6(a) (Am. Bar Ass’n 2016). The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” Id. Rule 1.6’s prohibition against disclosure applies not only to information relating to the representation, but also to disclosures that do not themselves reveal protected information, but could reasonably lead to the discovery of such information by a third person. However, comment 4 permits a lawyer to discuss issues relating to the representation with a third party in hypothetical form, so long as there is no reasonable likelihood that the third party would be able to ascertain the client's identity or the situation involved. Here, the lawyer’s planned use of a hypothetical is permitted under Rule 1.6. The lawyer is discussing the client’s situation in general terms, without identifying the client or particular information about the client’s business practices. There is no reasonable likelihood that the accountant would learn the client’s identity or the situation involved during the planned discussion. As such, the lawyer does not need the client’s informed consent before communicating with the accountant in hypothetical terms. Answer option A is incorrect because it is overbroad in several respects. First, Rule 1.6 does not apply to all client information. Rather, it applies to information relating to the representation that is not generally known. A disclosure of information that is generally known is not barred by Rule 1.6 and does not require the client’s informed consent. Secondly, the Rule expressly acknowledges that the client’s informed consent is not required for all disclosures of information relating to the representation. Rather, the lawyer may also act on the client’s implied authorization in order to carry out the representation. Answer option B is incorrect because the profession of the third party is not relevant to Rule 1.6’s application. A disclosure of information relating to the representation to any third party, even a lawyer, is within the scope of the Rule and requires informed consent or implied authorization. Answer option D is incorrect because client information protected under Rule 1.6 is broader than that protected by the attorney-client privilege. See Restatement (Third) of the Law Governing Lawyers § 59 cmt. b (observing that the rule “covers information gathered from any source, including sources such as third persons whose communications are not protected by the attorney-client privilege.”).

Answer 96

C Yes, because the lawyer’s duty of confidentiality continues after the representation has ended. Answer option C is correct. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent. Model Rules Prof’l Conduct r. 1.6(a) (Am. Bar Ass’n 2016). This duty continues even after the client-lawyer relationship has ended. Id. at cmt. 20. Because the lawyer’s duty of confidentiality continues after the representation has ended, the lawyer was prohibited from revealing his client’s confidential information. Answer option A is incorrect because the information at issue was, in fact, confidential and maintained as confidential during the administrative hearing. Answer option B is incorrect because although Rule 1.6(b)(5) permits a lawyer to reveal information necessary to establish a claim or defense on behalf of the lawyer in a controversy between a lawyer and his or her client, this exception applies to legal controversies such as malpractice claims, not public social media controversies. Id. at 1.6(b)(5) cmt. 10. Answer option D is incorrect because a lawyer’s disclosure of confidential information is permitted only in certain narrow circumstances detailed in Rule 1.6(b) or with a client’s informed consent.

Answer 97

B A lawyer’s disclosure to her best friend that her client is a drug addict who should seek treatment. Answer option B is correct. Rule 1.6(a) of the Model Rules of Professional Conduct recognizes that, in certain instances, a lawyer may need to disclose information about a client to represent the client effectively because it would be unworkable and detrimental to the representation to require that the lawyer seek her client’s informed consent for each and every disclosure necessary to further the representation. Model Rules of Prof’l Conduct r. 1.6(a) cmt. 5 (Am. Bar Ass’n 2016). The rule permits lawyers to exercise professional discretion in disclosing confidential client information to carry out the client’s representation. Id. at r. 1.6(a). However, the rule does not authorize lawyers to disclose confidential client information gratuitously or not in furtherance of the client’s representation. Therefore, a lawyer’s disclosure to her best friend that her client is a drug addict who should seek treatment is not an impliedly authorized disclosure. Answer options A, C, and D are all incorrect because each correctly states a disclosure made in furtherance of a client’s representation that would be impliedly authorized under the ethical rules.

Answer 98

A The lawyer must obtain the client’s informed consent. Answer option A is correct. Informed consent and implied authorization are alternative means by which a lawyer is permitted to disclose a client’s information. Therefore, if a lawyer has implied authorization to disclose the client’s information, the lawyer is not required to obtain the client’s informed consent. See Model Rules of Professional Conduct r. 1.6(a) (Am. Bar Ass’n 2016). Rule 1.6(a) recognizes that, in certain instances, a lawyer may need to disclose information about a client to represent the client effectively because it would be unworkable and detrimental to the representation to require that the lawyer seek her client’s informed consent for each and every such disclosure. Id. at r. 1.6(a) cmt. 5. Answer options B and D are incorrect because the rule permits lawyers to exercise professional discretion in disclosing confidential client information to carry out a client’s representation. Id. at r. 1.6(a). However, a client’s express request that her lawyer not disclose information is subordinate to any implied authorization for disclosure. Id. at cmt. 5. Answer option C is thus incorrect because if a client requests that the lawyer keep information confidential, the lawyer must abide by that request, even if in the lawyer’s professional judgment, the information should be disclosed

Answer 99

A Yes, because the client explicitly told the lawyer not to disclose the information. Answer option A is correct. Rule 1.6(a) of the Model Rules of Professional Conduct recognizes that, in certain instances, a lawyer may need to disclose information about a client to represent the client effectively because it would be unworkable and detrimental to the representation to require that the lawyer seek her client’s informed consent for each and every such disclosure. Model Rules of Prof’l Conduct r. 1.6(a) cmt. 5 (Am. Bar Ass’n 2016). The rule permits lawyers to exercise their professional discretion in disclosing a client’s confidential information made to carry out the client’s representation. Id. at r. 1.6(a). However, a client’s express request that his lawyer not disclose information is subordinate to any implied authorization for disclosure. Id. at cmt. 5. Therefore, if a client requests that the lawyer keep certain information confidential, the lawyer must abide by that request, even if in the lawyer’s professional judgment, the information should be disclosed. Id. Answer option B is incorrect because whether the comment was disparaging is not relevant to whether the lawyer breached his duty of confidentiality to his client. Answer option C is incorrect because the disclosure directly contradicted the client’s instructions and violated the duty of confidentiality, regardless of whether the disclosure occurred in a professional or personal context. Answer option D is incorrect because the statement was not necessary for the lawyer to carry out the representation of his client.

Answer 100

C The lawyer should not disclose his settlement authority without his client’s informed consent. Answer option C is correct. Rule 1.6(a) of the Model Rules of Professional Conduct recognizes that, in certain instances, a lawyer may need to disclose information about a client to represent the client effectively because it would be unworkable and detrimental to the representation to require that the lawyer seek her client’s informed consent for each and every such disclosure. Model Rules of Prof’l Conduct r. 1.6(a) cmt. 5 (Am. Bar Ass’n 2016). The rule permits lawyers to exercise professional discretion in disclosing a client’s confidential information made to carry out the client’s representation. Id. at r. 1.6(a). However, here the disclosure of settlement authority has significant implications for the client, which requires the lawyer to obtain his client’s informed consent under the ethical rules. See, e.g., ABA Formal Ethics Op. 93-370 (1993) (unless client consents, lawyer should not reveal to judge – and judge should not require lawyer to disclose–client’s instructions on settlement authority limits or lawyer’s advice about settlement). Answer option A is incorrect because although a lawyer is both an officer of the court and an advocate for his client, the lawyer is bound by his ethical duties to his client. Answer option B is incorrect because disclosing settlement authority is not the kind of routine disclosure that Rule 1.6(a) permits in furtherance of a client’s representation. Answer option D is incorrect because under certain circumstances it may be appropriate for a lawyer to disclose his settlement authority, but the lawyer must first obtain the client’s informed consent.

Answer 101

B “I think my client is going to settle, I just need a little more time to convince her.” Answer option B is correct. Rule 1.6(a) of the Model Rules of Professional Conduct recognizes that, in certain instances, a lawyer may need to disclose information about a client to represent the client effectively because it would be unworkable and detrimental to the representation to require that the lawyer seek her client’s informed consent for each and every such disclosure. Model Rules of Prof’l Conduct r. 1.6(a) cmt. 5 (Am. Bar Ass’n 2016). The rule permits lawyers to exercise professional discretion in disclosing confidential client information to carry out the client’s representation. Id. at r. 1.6(a). Here, disclosing that a client is going to settle does not fall within the implicit authorization permitted by Rule 1.6(a) because it discloses inherently privileged information that could be detrimental to the client’s representation. Answer options A, C, and D are all incorrect because each states a disclosure of client information routine in carrying out the client’s representation implicitly permitted by the ethical rules.

Answer 102

A Yes, because a lawyer’s confidentiality obligations do not prohibit her from seeking confidential legal advice about her ethical obligations. Answer option A is correct. Rule 1.6(b)(4) permits a lawyer to reveal information relating to the representation to the extent the lawyer believes it is reasonably necessary, in order to secure legal advice about the lawyer’s compliance with the Model Rules of Professional Conduct. In many situations, such disclosure is impliedly authorized in order for a lawyer to be able to carry out the representation. But even if the disclosure were not impliedly authorized, the exception in Rule 1.6(b)(4) permits it. Here, the lawyer has disclosed information relating to her representation of the accounting firm to another attorney specializing in legal ethics. The lawyer consulted with the attorney confidentially, in order to better understand her obligations, if any, under the applicable Rules of Professional Conduct. Rule 1.6(b)(4) permits disclosure under these circumstances. Answer option C is necessarily incorrect for this same reason. Answer option B is incorrect because a reasonable belief that a client has broken the law does not, by itself, permit a lawyer to disclose confidential information under Rule 1.6(b). Concerns that the client had already broken the law might permit disclosure, but only if the client had used the lawyer’s services in furtherance of the fraud, and only to mitigate or rectify substantial injury to the financial interests or property of another that resulted from the fraud. See Model Rule of Prof. Conduct 1.6(b)(3). Here, it is unclear whether the lawyer’s services were used in furtherance of any fraud, rendering answer option D incorrect as well. It is possible that advising the firm on terminating the employee, the lawyer may have unwittingly assisted the firm in covering up the fraud. However, even if that were true, the facts do not make clear whether substantial injury to another’s financial interests is reasonably certain to result from the alleged fraud, or has resulted from the alleged fraud. Therefore, answer option A is a better answer than answer options B and D, and illustrates the value of the exception for obtaining advice on how best to comply with the Rules of Professional Conduct: the exception enables the lawyer to be proactive and reach out for advice to make an informed decision, even before the lawyer is certain or reasonably certain that her services have been used in furtherance of any fraud.

Answer 103

B The communication must be made during or in anticipation of litigation. Answer option B is correct. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. See Upjohn Co. v. United States, 442 U.S. 383 (1981). Protection is afforded only to confidential communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Id. at 389. The attorney-client privilege, unlike the work-product doctrine, does not require that the communication be made in anticipation of litigation. Answer options A, C, and D are incorrect because each correctly states a requirement for the attorney-client privilege to apply.

Answer 104

C No, because Rule 1.6 only permits, but does not require, disclosure of information relating to the representation. Answer option C is correct. Rule 1.6 of the Model Rules of Professional Conduct governs a lawyer’s disclosure of confidential information. Confidential information is any information related to the representation of the client that is not generally known. See Restatement (Third) of the Law Governing Lawyers § 59. In general, absent the client’s informed consent, a lawyer may not disclose confidential information. However, a lawyer is impliedly authorized to disclose confidential information when appropriate to carry out the representation. Rule 1.6(b) also defines seven exceptions under which a lawyer may disclose confidential information even without express or implied consent from the client. Notably, all of the circumstances in Rule 1.6 make disclosure of confidential information at most possible or permissive. Rule 1.6 does not require a lawyer to disclose any information related to the representation. Model Rule of Prof’l Conduct 1.6 (Am. Bar Ass’n 2016). Here, the lawyer has learned about the physician’s coding practices in the course of representing the physician in the medical-malpractice action. The information is thus confidential and protected by Rule 1.6. Rule 1.6 does not require the lawyer to disclose the information, because Rule 1.6 does not make disclosure mandatory. Rather, Rule 1.6 makes disclosure permissive if a lawyer has express or implied consent from the physician, or if some other exception in 1.6(b) applies. Answer options A and B are necessarily incorrect for this same reason. Answer option D is incorrect. Rule 1.6(b)(1) permits, but does not require, a lawyer to disclose information related to the representation in order to prevent reasonably certain death or substantial bodily harm. Note that, while Rule 1.6 itself does not make any disclosures mandatory, Rule 4.1 does require a lawyer to disclose material facts to third parties when disclosure is necessarily to avoid knowingly assist a client’s criminal or fraudulent act, unless disclosure is prohibited by Rule 1.6. Id. r. 4.1(b) & cmt. At least here, Rule 4.1(b) would not require the lawyer to disclose the physician’s coding practices to insurers because the lawyer does not know that she is assisting in the physician’s criminal or fraudulent act. The comment from the physician’s billing manager arguably does not provide the lawyer with that knowledge of any crime or fraud; the billing manager is worried about fraud but has stated that there is also support in the records for how the practice is coding. Moreover, the lawyer’s representation of the physician in the malpractice action is also arguably not providing any assistance to the physician’s coding practices, even if they were fraudulent.

Answer 105

D Yes, because the memorandum is attorney work product and is a confidential communication between the lawyer and her client. Answer option D is correct. As comment 3 to Rule 1.6 of the Model Rules of Professional Conduct notes, lawyer-client confidentiality is derived from a variety of sources, among them the lawyer’s general ethical duty of confidentiality, the attorney-client privilege, and the attorney work-product doctrine. Model Rules of Prof’l Cond. r. 1.6, cmt. 3 (Am. Bar Ass’n 2016). Rule 1.6(a) sets forth a broad requirement for lawyer confidentiality. Id. at r. 1.6(a). The rule prohibits a lawyer from revealing any information that relates to the representation of a client”without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” In addition to the protection derived from a lawyer’s general ethical duty of confidentiality, the attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. See Upjohn Co. v. United States, 442 U.S. 383 (1981). Finally, the attorney work-product doctrine protects from disclosure during discovery tangible materials, or their intangible equivalents, that were prepared either by or for a lawyer in anticipation of litigation. See Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947). Here, because the draft memorandum was both a confidential communication between a lawyer and her client, as well as the lawyer’s work product prepared in litigation, it is protected by both the attorney-client privilege and the work-product doctrine. Answer option A is incorrect because the fact that the draft memorandum is the predecessor to a document that will later be public record is not relevant to whether it is privileged before its filing. Answer option B is incorrect because the memorandum is a confidential communication between the lawyer and her client. Confidential communications are not defined solely as conversations. Answer option C is incorrect because the lawyer has the client’s implied authorization to disclose information about the client in furtherance of the representation, which includes filing a memorandum in support of summary judgment.

Answer 106

D The scope of a disclosure adverse to a client is no greater than the lawyer reasonably believes necessary to accomplish the purpose of the disclosure. Answer option D is correct. Rule 1.6(b) of the Model Rules of Professional Conduct enumerates six situations when it may be appropriate—though it is never required—for a lawyer to reveal a client’s confidential information without the client’s informed consent or implied authorization, if the lawyer determines that the disclosure is reasonable. Model Rules of Prof’l Conduct r. 1.6(a) (Am. Bar Ass’n 2016). Comment 16 to Rule 1.6 advises that “a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.” Id. at cmt. 16. Answer option A is incorrect because the scope is not unlimited, even if the disclosure is not adverse to the client. Answer option B is incorrect because a lawyer does not have unlimited discretion to determine the scope of a Rule 1.6(b) disclosure. Answer option C is incorrect because a client’s informed consent is not required when an attorney discloses information under one of Rule 1.6(b)’s exceptions to the general rule of confidentiality. Let u

Answer 107

B The lawyer may bring a collection action against the client and reveal confidential information about the client’s financial ability to pay his outstanding fee in the collection action. Answer option B is correct. Rule 1.6(b) of the Model Rules of Professional Conduct enumerates six situations when it may be appropriate—though itis never required—that a lawyer reveal a client’s confidential information without the client’s informed consent or implied authorization, if the lawyer determines that the disclosure is reasonable. Model Rules of Prof’l Conduct r. 1.6(b) (Am. Bar Ass’n 2016). Rule 1.6(b)(4) permits a lawyer’s disclosure of client information in order to inquire about the lawyer’s own compliance with ethical rules. Id. at r. 1.6(b)(4). Rule 1.6(b)(5) permits a lawyer’s disclosure of client information to establish a claim or defense against the client. Id. at r. 1.6(b)(5). Therefore, Rule 1.6(b)(5) supports the lawyer’s disclosure of the client’s confidential information in a collection action against the client. See also id. at r. 1.6 cmt. 11. Answer option A is incorrect because although Rule 1.6(b)(4) permits a lawyer’s disclosure of client information to inquire about the lawyer’s compliance with ethical rules, the informal disclosure at a bar luncheon is not the type of disclosure the rule permits. Answer option C is incorrect because disclosure of the client’s information, even information unrelated to the specifics of the representation, is prohibited by Rule 1.6’s broad confidentiality rule. Id. at r. 1.6(a). Answer option D is incorrect because Rule 1.6 prohibits a lawyer from revealing a client’s information without the client’s informed consent or implied authorization, unless the disclosure falls within one of Rule 1.6(b)’s narrow exceptions.

Answer 108

A Yes, by the attorney-client privilege. Answer option A is correct. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. See Upjohn Co. v. United States, 442 U.S. 383 (1981). Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Id. at 389. Therefore, because the lawyer learned the information about the crime from a prospective client, the information is protected as a confidential communication between a lawyer and a prospective client made for the purpose of obtaining legal advice. Answer option B is incorrect because the work-product doctrine protects only tangible items, or their intangible equivalent, prepared by or for a lawyer in anticipation of litigation. Here the communication between the lawyer and her prospective client is thus not protected by the work-product doctrine. Answer option C is incorrect because evidence of a past crime is not necessarily excluded from protection from disclosure. Answer option D is incorrect because the attorney-client privilege, as noted above, protects confidential communications between attorneys and prospective clients even if an attorney-client relationship does not result.

Answer 109

C The work-product doctrine. Answer option C is correct. The work-product doctrine applies only in anticipation of and during litigation, whereas the attorney-client privilege and the general duty of confidentiality survive both the termination of the attorney-client relationship and the death of the client. See Fed. R. Civ. P. 26(b)(2); Swidler & Berlin v. United States, 524 U.S. 399 (1998); Model Rules of Prof’l Conduct r. 1.6 cmt. 18 (Am. Bar Ass’n 2016). Answer options A and B are incorrect for that reason.

Answer 110

B The general duty of confidentiality. Answer option B is correct. Rule 1.6(a) of the Model Rules of Professional Conduct prohibits a lawyer from revealing information that relates to the representation of a client. See Model Rules of Prof’l Conduct r. 1.6(a) (Am. Bar Ass’n 2016). This prohibition also prevents a lawyer from revealing any information that, although not protected information itself, could lead to the discovery of protected information. Id. at r. 1.6 cmt. 4. Therefore, Rule 1.6 provides the broadest protection for client information. Answer option A is incorrect because the attorney-client privilege protects only confidential communications made for the purpose of obtaining legal advice and is thus narrower than the general duty of confidentiality. See Upjohn Co. v. United States, 449 U.S. 383 (1981). Answer option C is incorrect because the work-product doctrine protects only tangible materials, or their intangible equivalents, prepared by or for an attorney in anticipation of litigation. See Hickman v. Taylor, 329 U.S. 495 (1947); Fed. R. Civ. P. 26(b)(2). Therefore, work-product protection is substantially narrower than that of the attorney-client privilege or the general duty of confidentiality.

Answer 111

B A finding that the client had instructed the lawyer not to disclose the client’s settlement terms to the mediator. Answer option B is correct. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. Model Rules of Prof’l Conduct r. 1.6(a) (Am. Bar Ass’n 2016). The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” If the information is not confidential or is already known, the lawyer cannot reveal it; therefore, the duty of confidentiality does not apply. If the information is confidential, the client has the ultimate control over its disclosure and may advise his lawyer not to disclose it, and the lawyer must abide by that request, professional judgment notwithstanding. Here, answer option B is correct because a finding that the client expressly instructed the lawyer not to disclose the settlement terms would support the conclusion that the lawyer had unethically revealed the information. Answer option A is incorrect because a finding that the lawyer did not need informed consent to disclose the information would support a conclusion that the lawyer acted ethically. Answer option C is incorrect because a finding that the lawyer had the client’s implied authorization to disclose the information would also support a conclusion that the lawyer acted ethically. Answer option D is incorrect because a finding that the client had previously disclosed the information to the opposing party would mean that the lawyer had no duty of confidentiality with respect to that information and therefore acted ethically.

Answer 112

D No, because the Model Rules permit, but do not require, the lawyer to disclose the client’s confidential information under these circumstances. Answer option D is correct. Model Rule 1.6(b) provides seven exceptions permitting a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. One such exception is to prevent reasonably certain death or substantial bodily harm. However, all these exceptions are permissive, not mandatory. Here, the lawyer is not required to disclose the presence of the industrial rat poison, even if the lawyer believes that such disclosure is necessary to prevent reasonably certain death or substantial bodily harm. Note that many jurisdictions differ from the Model Rules, mandating that a lawyer break confidentiality to prevent serious harms such as injury or significant financial loss. Answer option A is incorrect. Model Rule 1.6(b) provides seven exceptions permitting a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. One such exception is to prevent reasonably certain death or substantial bodily harm. However, all these exceptions are permissive, not mandatory. Here, the lawyer is not required to disclose the presence of the industrial rat poison, even if the lawyer believes that such disclosure is necessary to prevent reasonably certain death or substantial bodily harm. Note that many jurisdictions differ from the Model Rules, mandating that a lawyer break confidentiality to prevent serious harms such as injury or significant financial loss. Answer option B is incorrect. Model Rule 1.6(b) provides seven exceptions permitting a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. One such exception is to prevent reasonably certain death or substantial bodily harm. However, all these exceptions are permissive, not mandatory. No general exception exists permitting a lawyer to break confidence to remedy a crime a client has committed, although the rules do permit disclosure to prevent, mitigate, or rectify substantial injury to financial interests or property resulting from a client’s crime or fraud that used the lawyer’s services. Here, the lawyer may disclose the presence of the industrial rat poison to prevent reasonably certain death or substantial bodily harm. However, the lawyer is not required to do so. Answer option C is incorrect. Model Rule 1.6(b) provides seven exceptions permitting a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. One such exception is to prevent reasonably certain death or substantial bodily harm. However, all these exceptions are permissive, not mandatory. This answer option incorrectly states that the lawyer cannot disclose confidential information without the client’s consent. However, a lawyer may disclose confidential information pursuant to one of the exceptions listed in Rule 1.6(b), even without the client’s consent. Here, the lawyer may disclose the presence of the industrial rat poison to prevent reasonably certain death or substantial bodily harm. However, the lawyer is not required to do so.

Answer 113

C No, because the privilege does not apply to communications made in furtherance of committing a future crime or tort. Answer option C is correct. One exception to the general rule of attorney-client confidentiality is the crime-fraud exception. A communication is not privileged if the client communicates with the lawyer with the purpose of committing or obtaining assistance in committing a crime or a fraud, and the client accomplishes that purpose. Here, the man sought the lawyer’s assistance in violating a federal statute making it a crime to flee a jurisdiction to evade prosecution. The man used the lawyer’s assistance to accomplish this crime. Therefore, the communication falls into the crime-fraud exception and is not privileged. Note that the crime-fraud exception does not depend on the lawyer’s knowledge that his advice is being used to commit a crime. Answer option A is incorrect. One exception to the general rule of attorney-client confidentiality is the crime-fraud exception. A communication is not privileged if the client communicates with the lawyer with the purpose of committing or obtaining assistance in committing a crime or a fraud, and the client accomplishes that purpose. Here, the man’s consultation with the attorney concerns a legal matter, which would normally be protected by attorney-client privilege. However, the man sought the lawyer’s assistance in violating a federal statute making it a crime to flee a jurisdiction to evade prosecution. The man used the lawyer’s assistance to accomplish this crime. Therefore, the communication falls into the crime-fraud exception and is not privileged. Answer option B is incorrect. One exception to the general rule of attorney-client confidentiality is the crime-fraud exception. A communication is not privileged if the client communicates with the lawyer with the purpose of committing or obtaining assistance in committing a crime or a fraud, and the client accomplishes that purpose. Here, the attorney provided legal advice in her capacity as a lawyer. This communication would normally be protected by attorney-client privilege. However, the man sought the lawyer’s assistance in violating a federal statute that makes it a crime to flee a jurisdiction to evade prosecution. The man used the lawyer’s assistance to accomplish this crime. Therefore, the communication falls into the crime-fraud exception and is not privileged. Answer option D is incorrect. One exception to the general rule of attorney-client confidentiality is the crime-fraud exception. A communication is not privileged if the client communicates with the lawyer with the purpose of committing or obtaining assistance in committing a crime or a fraud, and the client accomplishes that purpose. This answer option incorrectly states that communications related to the commission of any crime are not protected by the privilege. The privilege protects communications concerning past crimes, and it even protects communications concerning the commission of future crimes, if the client never ultimately commits an offense. Here, the man sought the lawyer’s assistance in violating a federal statute making it a crime to flee a jurisdiction to evade prosecution. The man used the lawyer’s assistance to accomplish this crime. Therefore, the communication falls into the crime-fraud exception and is not privileged.

Answer 114

D A real estate purchase offer made by a third party and forwarded to the attorney by the client. Answer option D is correct. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Here, the forwarded purchase offer is not itself a protected confidential communication between an attorney and a client, because it was forwarded from a third party. Although the client’s discussions with his attorney about the attorney’s legal opinion of the purchase offer would be privileged, the offer itself is not. Answer option A is incorrect. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Here, information in a personal email to an attorney in preparation for a hearing is a protected communication. (It is worth noting, however, that communications sent on an employer’s or academic institution’s server may not be privileged if the server host has warned users that it monitors emails sent through its system.) In contrast, a forwarded purchase offer is not a protected confidential communication between an attorney and a client, because it was forwarded from a third party. Answer option B is incorrect. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Here, a client and his attorney discussing a settlement offer by telephone is a protected communication, provided the conversation was not conducted in the presence of a third party. In contrast, a forwarded purchase offer is not a protected confidential communication between an attorney and a client, because it was forwarded from a third party. Answer option C is incorrect. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Here, a conversation between a client and her attorney discussing the terms and conditions of the client’s employment contract is a protected communication unless conducted in the presence of a third party. In contrast, a forwarded purchase offer is not a protected confidential communication between an attorney and a client, because it was forwarded from a third party.

Answer 115

A No, because the woman was not a client or prospective client. Answer option A is correct. The attorney-client privilege protects from disclosure confidential communications between an attorney and a client made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Here, the woman had no intention of hiring the neighbor to represent her, so the woman was not a client or prospective client of the neighbor. Therefore, although the woman was seeking legal advice from the neighbor, the woman’s conversation with him is unlikely to be protected by the attorney-client privilege. Answer option B is incorrect. The attorney-client privilege protects from disclosure confidential communications between an attorney and a client made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. The attorney-client privilege is not limited to a single attorney. Here, if the woman were a client or prospective client of the neighbor, her conversation would likely be protected by the attorney-client privilege even though the woman was already represented by counsel. However, under these facts, the conversation is not protected, because the woman was neither a client nor a prospective client of the neighbor. Answer option C is incorrect. The attorney-client privilege protects from disclosure confidential communications between an attorney and a client made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Here, the woman had no intention of hiring the neighbor to represent her, so the woman was not a client or prospective client of the neighbor. Therefore, although the woman was seeking legal advice from the neighbor, the woman’s conversation with him is unlikely to be protected by the attorney-client privilege. Answer option D is incorrect. The attorney-client privilege protects from disclosure confidential communications between an attorney and a client made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Not every conversation with a lawyer is protected by the attorney-client privilege. Here, the woman had no intention of hiring the neighbor to represent her, so the woman was not a client or prospective client of the neighbor. Therefore, although the woman was seeking legal advice from the neighbor, the woman’s conversation with him is unlikely to be protected by the attorney-client privilege.

Answer 116

A Yes, because the client’s consent was not informed due to the attorney not explaining other options and the potential risks and benefits of the attorney’s chosen strategy. Answer option A is correct. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent. Model Rule 1.0(e) defines informed consent as a client’s agreement to follow a course of action after his or her lawyer has communicated enough information and explanation of all material risks and any reasonable alternatives. Here, the attorney did not obtain the requisite informed consent from her client, because she failed to inform him of both the risks of his decision and any reasonable alternatives. Therefore, although the attorney obtained the client’s written consent, the consent was not informed and was therefore invalid Answer option B is incorrect. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent. Model Rule 1.0(e) defines informed consent as a client’s agreement to follow a course of action after his or her lawyer has communicated enough information and explanation of all material risks and any reasonable alternatives. Here, although the client was required to give informed consent, there is no requirement that the client be given an opportunity to consult with independent counsel in deciding whether to waive privilege and disclose confidential information. Rather, the attorney is subject to discipline because she did not obtain the requisite informed consent from her client, because she failed to inform him of both the risks of his decision and any reasonable alternatives. Answer option C is incorrect. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent. Model Rule 1.0(e) defines informed consent as a client’s agreement to follow a course of action after his or her lawyer has communicated enough information and explanation of all material risks and any reasonable alternatives. No rule permits an attorney to break confidence just because the lawyer believes that releasing confidential information is a better strategic decision. The attorney must obtain the client’s informed consent, unless some other exception applies. Here, the attorney is subject to discipline because she did not obtain the requisite informed consent from her client, because she failed to inform him of both the risks of his decision and any reasonable alternatives. Answer option D is incorrect. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent. Model Rule 1.0(e) defines informed consent as a client’s agreement to follow a course of action after his or her lawyer has communicated enough information and explanation of all material risks and any reasonable alternatives. Here, the attorney was not implicitly authorized to release the information. An attorney may be implicitly authorized to release certain confidential information to benefit a client, but this rule does not apply if the client specifically asks that the information be kept confidential. The attorney is subject to discipline because she did not obtain the requisite informed consent from her client, because she failed to inform him of both the risks of his decision and any reasonable alternatives.

Answer 117

C To gain an advantage in a case in which the information will inevitably be disclosed in litigation. Answer option C is correct. A lawyer cannot ordinarily disclose confidential client information without the client’s consent. Rule 1.6(b) of the Model Rules of Professional Conduct lists several exceptions permitting, but not requiring, a lawyer to break confidence if the lawyer believes that doing so is reasonably necessary. The fact that information will inevitably be disclosed in litigation is not an exception permitting disclosure, even if the lawyer believes that early disclosure will gain an advantage. The other answer options all list situations in which the Model Rules permit a lawyer to disclose confidential information. Answer option A is incorrect. A lawyer cannot ordinarily disclose confidential client information without the client’s consent. Rule 1.6(b) of the Model Rules of Professional Conduct lists several exceptions permitting, but not requiring, a lawyer to break confidence if the lawyer believes that doing so is reasonably necessary. Preventing reasonably certain death or substantial bodily harm is an exception permitting a lawyer to disclose confidential information. In contrast, the fact that information will inevitably be disclosed in litigation is not an exception permitting disclosure, even if the lawyer believes that early disclosure will gain an advantage. Answer option B is incorrect. A lawyer cannot ordinarily disclose confidential client information without the client’s consent. Rule 1.6(b) of the Model Rules of Professional Conduct lists several exceptions permitting, but not requiring, a lawyer to break confidence if the lawyer believes that doing so is reasonably necessary. Rectifying substantial injury to the financial interests of another caused by the client fraudulently using the lawyer’s services is an exception permitting a lawyer to disclose confidential information. In contrast, the fact that information will inevitably be disclosed in litigation is not an exception permitting disclosure, even if the lawyer believes that early disclosure will gain an advantage. Answer option D is incorrect. A lawyer cannot ordinarily disclose confidential client information without the client’s consent. Rule 1.6(b) of the Model Rules of Professional Conduct lists several exceptions permitting, but not requiring, a lawyer to break confidence if the lawyer believes that doing so is reasonably necessary. Detecting and resolving potential conflicts of interest is an exception permitting a lawyer to disclose confidential information. In contrast, the fact that information will inevitably be disclosed in litigation is not an exception permitting disclosure, even if the lawyer believes that early disclosure will gain an advantage.

Answer 118

C The lawyer may contact the defrauded former employer and reveal the information to mitigate or rectify the financial harm to the employer. Answer option C is correct. Model Rule of Professional Conduct 1.6(b) provides seven exceptions permitting a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. One such exception is to prevent, mitigate, or rectify substantial injury to the financial interests or property of another caused by the client’s commission of a crime or fraud that used the lawyer’s services. Here, the client used the lawyer’s services to file a fraudulent workers’-compensation claim against his former employer. This fraudulent claim caused substantial financial injury to the employer. Therefore, the lawyer may, but does not have to, reveal the information to the employer to mitigate or rectify the harm caused by the client’s fraudulent claim. Answer option A is incorrect. Model Rule of Professional Conduct 1.6(b) provides seven exceptions permitting a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. One such exception is to prevent, mitigate, or rectify substantial injury to the financial interests or property of another caused by the client’s commission of a crime or fraud that used the lawyer’s services. Here, the lawyer does not have to reveal the information, because breaking confidence is permissive, not mandatory. However, the lawyer may reveal the information to the employer to mitigate or rectify the harm caused by the client’s fraudulent claim. Answer option B is incorrect. Model Rule of Professional Conduct 1.6(b) provides seven exceptions permitting a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. One such exception is to prevent, mitigate, or rectify substantial injury to the financial interests or property of another caused by the client’s commission of a crime or fraud that used the lawyer’s services. Here, the lawyer does not have to reveal the information, because breaking confidence is permissive, not mandatory. However, the lawyer may reveal the information to the employer to mitigate or rectify the harm caused by the client’s fraudulent claim. Answer option D is incorrect. Model Rule of Professional Conduct 1.6(a) provides that a lawyer may disclose information if such disclosure is impliedly authorized to carry out the representation. Rule 1.6(b) provides seven exceptions permitting a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary. One such exception is to prevent, mitigate, or rectify substantial injury to the financial interests or property of another caused by the client’s commission of a crime or fraud that used the lawyer’s services. Here, the disclosure of the information would likely harm the client. Therefore, this is not the type of disclosure that is impliedly authorized to carry out the representation under Rule 1.6(a). Rather, the lawyer may disclose the information under Rule 1.6(b) to mitigate or rectify the harm caused by the client’s fraudulent claim.

Answer 119

D The client’s communication is protected by the attorney-client privilege, but the lawyer may disclose the communication if he believes that the client’s actions are reasonably certain to kill or injure the wife. Answer option D is correct. As comment 3 to Rule 1.6 of the Model Rules of Professional Conduct notes, lawyer-client confidentiality is derived from a variety of sources, among them the attorney-client privilege, the work-product doctrine, and the lawyer’s general ethical duty of confidentiality. Rule 1.6(a) sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” This broad prohibition applies except in six situations in which it may be appropriate—though it is never required—for a lawyer to reveal a client’s confidential information without the client’s informed consent or implied authorization, if the lawyer determines that the disclosure is reasonable. One such exception permits a lawyer to reveal client information to prevent reasonably certain death or bodily injury. Here, the client’s communication to the lawyer is covered by the attorney-client privilege. However, the lawyer can disclose the client’s communication if the lawyer reasonably believes that disclosure is necessary to prevent reasonably certain death or substantial physical injury to the wife. Answer option A is incorrect. Model Rule 1.6 prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” Here, the client’s confession of sabotaging his estranged wife’s car relates to the lawyer’s representation of the client. The attorney-client privilege is broad, and it encompasses any communications that implicate legal concerns, even if the client does not specifically ask for the lawyer’s advice or analysis. Answer option B is incorrect. Model Rule 1.6 prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” The crime-fraud exception provides that communications are not protected if made for the purpose of committing a crime or fraud that the client later commits. Here, the client’s communication concerns a past crime, not plans to commit a future one. Therefore, the crime-fraud exception is not applicable, and the client’s communication is protected by the attorney-client privilege. Answer option C is incorrect. Model Rule 1.6 prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” One exception permits a lawyer to reveal client information to prevent reasonably certain death or bodily injury. Here, the answer option misstates the standard permitting disclosure. A lawyer may not disclose a privileged communication just because the client has revealed an action that poses a risk to the life or safety of a third party. The risk must be one that is reasonably certain to kill or injure.

Answer 120

C Implied authorization requires advising a client of the risks and alternatives to disclosure. nswer option C is correct. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” Rule 1.6(a)’s implied-authorization provision reflects that in certain instances, a lawyer may need to disclose information about a client to carry out the representation effectively and that obtaining informed consent for each disclosure is not practicable or necessary. Unlike express authorization, implied authorization does not require advising the client of the risks and alternatives to disclosure. Rather, the lawyer can use her own professional judgment to decide whether disclosure would benefit the client and may disclose the information without even telling the client. Answer option A is incorrect. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” Rule 1.6(a)’s implied-authorization provision reflects that in certain instances, a lawyer may need to disclose information about a client to carry out the representation effectively and that obtaining informed consent for each disclosure is not practicable or necessary. This answer option is incorrect because it states a true principle concerning implied authorization. If a client expressly tells a lawyer not to reveal certain information, the lawyer must abide by the client’s wishes, even if the lawyer believes that disclosure of the information would benefit the client’s case. Answer option B is incorrect. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” Rule 1.6(a)’s implied-authorization provision reflects that in certain instances, a lawyer may need to disclose information about a client to carry out the representation effectively and that obtaining informed consent for each disclosure is not practicable or necessary. This answer option is incorrect because it states a true principle concerning implied authorization. A lawyer is impliedly authorized to disclose information only to the extent necessary to carry out the representation. That means that a lawyer may be limited in what information can be revealed or to whom it can be revealed. In contrast, a client can give informed consent to permit the lawyer to disclose any information, to any party, even if such disclosure does not help the lawyer carry out the representation. Answer option D is incorrect. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” Rule 1.6(a)’s implied-authorization provision reflects that in certain instances, a lawyer may need to disclose information about a client to carry out the representation effectively and that obtaining informed consent for each disclosure is not practicable or necessary. This answer option is incorrect because it states a true principle concerning implied authorization. Lawyers in the same firm are generally impliedly authorized to disclose information to each other, unless the client dictates otherwise.

Answer 121

A Yes, because a lawyer is generally prohibited from disclosing confidential information without the client’s consent. Answer option A is correct. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” Here, the attorney’s duty of confidentiality prohibits the lawyer from revealing the client’s disclosure of his intent to divorce his wife. The client revealed the information in confidence to the lawyer, and nothing indicates that the lawyer is impliedly authorized to reveal the information to carry out the representation. Answer option B is incorrect. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” The rule does not require potential harm to a client to shield information from disclosure. Here, the attorney’s duty of confidentiality prohibits the lawyer from revealing the client’s disclosure of his intent to divorce his wife. The client revealed the information in confidence to the lawyer, and nothing indicates that the lawyer is impliedly authorized to reveal the information to carry out the representation. Answer option C is incorrect. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” Here, the celebrity’s intent to divorce his wife was not generally known. The celebrity had posted only that he was experiencing marital difficulties. Regardless, nothing in the Model Rules permits a lawyer to disclose information about a current client just because that information is generally known or available elsewhere. A lawyer may reveal generally known information about a prior client, but not a current client. Answer option D is incorrect. Rule 1.6(a) of the Model Rules of Professional Conduct sets forth a broad requirement for lawyer confidentiality. The rule prohibits a lawyer from revealing any information that relates to the representation of a client without the client’s informed consent, unless the disclosure is “impliedly authorized in order to carry out the representation.” The lawyer’s representation of the celebrity in business matters does not mean that the celebrity’s communication about other matters is unprotected. The phrase “relates to the representation of a client” broadens, rather than narrows, the scope of information protected by attorney-client privilege. The general duty of confidentiality protects all information protected by attorney-client privilege, that is, communications between the client and the lawyer made for the purpose of seeking legal advice, and it also protects other communications between the client and the lawyer and information learned from other sources. Therefore, the information about the celebrity’s intent to divorce his spouse is protected from disclosure.

Answer 122

B General duty of confidentiality. Answer option B is correct. Three doctrines protect information relating to a lawyer’s representation of a client. The attorney-client privilege protects communications between the lawyer and client made in confidence for the purpose of obtaining or providing legal assistance. The work-product doctrine protects from discovery or disclosure documents or other tangible things, or their unwritten equivalents, prepared by a lawyer in anticipation of litigation or for trial. The general duty of confidentiality protects any information relating to the attorney-client relationship learned by the attorney while representing the client, regardless of its source. Here, the general duty of confidentiality prevents the lawyer from disclosing the fact of the client’s past fraudulent income-tax filings. The fact of the fraud is not protected by attorney-client privilege, because the lawyer did not learn of the information through a communication from the client made for the purpose of obtaining legal assistance. Nor is the fact of the fraud work product, because the fact of the fraud itself is independent of any documents the lawyer made regarding the fraud. Answer option A is incorrect. Three doctrines protect information relating to a lawyer’s representation of a client. The attorney-client privilege protects communications between the lawyer and client made in confidence for the purpose of obtaining or providing legal assistance. The work-product doctrine protects from discovery or disclosure documents or other tangible things, or their unwritten equivalents, prepared by a lawyer in anticipation of litigation or for trial. The general duty of confidentiality protects any information relating to the attorney-client relationship learned by the attorney while representing the client, regardless of its source. Here, the fact of the fraud is not protected by attorney-client privilege, because the lawyer did not learn of the information through a communication from the client made for the purpose of obtaining legal assistance. Rather, the general duty of confidentiality prevents the lawyer from disclosing the fact of the client’s past fraudulent income-tax filings. Answer option C is incorrect. Three doctrines protect information relating to a lawyer’s representation of a client. The attorney-client privilege protects communications between the lawyer and client made in confidence for the purpose of obtaining or providing legal assistance. The work-product doctrine protects from discovery or disclosure documents or other tangible things, or their unwritten equivalents, prepared by a lawyer in anticipation of litigation or for trial. The general duty of confidentiality protects any information relating to the attorney-client relationship learned by the attorney while representing the client, regardless of its source. Here, the fact of the fraud is not protected by the work-product doctrine, because the fact of the fraud itself is independent of any documents the lawyer made regarding the fraud. Rather, the general duty of confidentiality prevents the lawyer from disclosing the fact of the client’s past fraudulent income-tax filings. Answer option D is incorrect. Three doctrines protect information relating to a lawyer’s representation of a client. The attorney-client privilege protects communications between the lawyer and client made in confidence for the purpose of obtaining or providing legal assistance. The work-product doctrine protects from discovery or disclosure documents or other tangible things, or their unwritten equivalents, prepared by a lawyer in anticipation of litigation or for trial. The general duty of confidentiality protects any information relating to the attorney-client relationship learned by the attorney while representing the client, regardless of its source. Here, the general duty of confidentiality prevents the lawyer from disclosing the fact of the client’s past fraudulent income-tax filings. The fact of the past fraud is information the lawyer learned through representation of the client that relates to the representation. The fact is therefore protected from disclosure, assuming no exception applies, regardless of how the lawyer learned of the fraud.

Answer 123

B Yes, because the lawyer reasonably believed disclosure was necessary to prevent reasonably certain death or substantial bodily harm. Answer option B is correct. Information a client provides to an attorney during representation is usually privileged. Model Rule of Professional Conduct 1.6(b)(1) permits a lawyer to disclose information relating to the representation of a client if the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm. Here, the client has disclosed suicidal and homicidal thoughts to the lawyer. The client has also disclosed that he has purchased an assault rifle, a potential means to act on those thoughts. These facts support the lawyer’s reasonable belief that disclosure is necessary to prevent reasonably certain death or substantial bodily harm. Therefore, Rule 1.6(b)(1) does permit the lawyer to disclose his concerns to the client’s wife here. Answer option A is incorrect. Information a client provides to an attorney during representation is usually privileged. Model Rule of Professional Conduct 1.6(b)(1) permits a lawyer to disclose information relating to the representation of a client if the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm. Here, the information the client provided the attorney is confidential information, which is protected from disclosure, even if not covered by attorney-client privilege. However, the lawyer may disclose the information pursuant to Rule 1.6(b) to prevent reasonably certain death or substantial bodily harm. Answer option C is incorrect. Information a client provides to an attorney during representation is usually privileged. Model Rule of Professional Conduct 1.6(b)(1) permits a lawyer to disclose information relating to the representation of a client if the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm. The Model Rules do not specify to whom information may be disclosed under the exceptions permitting disclosure. Therefore, the lawyer may disclose the information to any person the lawyer thinks is appropriate. Here, although the wife does not appear to be at risk of death or serious physical injury, the lawyer may believe that disclosure of the information to the client’s wife is the best course of action. Therefore, the lawyer’s disclosure is appropriate. Answer option D is incorrect. Information a client provides to an attorney during representation is usually privileged. Model Rule of Professional Conduct 1.6(b)(1) permits a lawyer to disclose information relating to the representation of a client if the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm. The Model Rules do not specify to whom information may be disclosed under the exceptions permitting disclosure. Therefore, the lawyer may disclose the information to any person the lawyer thinks is appropriate. Here, although it may also be reasonable to disclose the information to law enforcement or the client’s coworkers, the lawyer has not violated any ethical rule by disclosing the information to the client’s wife.

Answer 124

C No, because the vice president may not have been acting in her capacity as an attorney. Answer option C is correct. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Here, the manager’s email to the vice president is not necessarily protected by the attorney-client privilege. Although the vice president is a lawyer, the facts do not establish that the vice president was acting in her capacity as a lawyer. Communication with a lawyer acting in a nonlegal capacity is not protected by the attorney-client privilege or any other form of confidentiality. Answer option A is incorrect. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Here, the manager’s email to the vice president is not necessarily protected by the attorney-client privilege. Although the vice president is a lawyer, the facts do not establish that the vice president was acting in her capacity as a lawyer. Communication with a lawyer acting in a nonlegal capacity is not protected by the attorney-client privilege or any other form of confidentiality. Answer option B is incorrect. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. Here, although the manager was seeking advice on how to terminate an employee, the facts do not establish that the manager was seeking legal advice from the vice president in the vice president’s capacity as an attorney. The manager may have been seeking practical advice or seeking to adhere to company policy. Therefore, the communication is not necessarily protected by the attorney-client privilege or any other form of confidentiality. Answer option D is incorrect. The attorney-client privilege protects from disclosure confidential communications between attorneys and their clients made in furtherance of the legal representation. Protection is afforded only to communications that satisfy three criteria. First, the communication must be with a client or prospective client. Second, the communication must be made with a member of the bar or member of the court who is acting as a lawyer in the communication. Third, the communication must be for the purpose of obtaining legal advice. The attorney-client privilege applies to institutional clients, such as corporations. Although the entity is the client, not individual constituents, the entity can only communicate with counsel through its constituents. Therefore, the attorney-client privilege still applies to communications between a corporation’s constituents and the corporation’s counsel. Here, rather, the attorney-client privilege does not necessarily apply because the facts do not establish that the vice president represented the company or was acting in her capacity as a lawyer in advising the manager. Communication with a lawyer acting in a nonlegal capacity is not protected by the attorney-client privilege or any other form of confidentiality.

Answer 125

A The lawyer must be granted leave of court to continue the representation. Answer option A is correct. Rule 1.7(b) of the Model Rules of Professional Conduct provides four clear criteria that must be satisfied so that a lawyer facing a conflict of interest posed by two or more concurrent clients may continue with the representation. First, the lawyer must reasonably believe that she will be able to provide competent and diligent representation to all affected clients despite the conflict of interest (answer option B). Second, the representation must not be prohibited by law (answer option C). Third, the representation must not involve clients asserting claims against each other in the same litigation or matter before a tribunal. Fourth, all clients affected by a conflict of interest must give their written informed consent to the continued representation (answer option D). See Model Rules of Prof’l Conduct R1.7(b) (2009). Answer option A is correct because leave of court is not a requirement that must be met to continue representing two or more clients who pose a conflict of interest. Answer options B, C, and D are all incorrect answer options because each of these options correctly states a criterion that a lawyer facing a conflict of interest must satisfy in order to continue with concurrent representation of two clients.

Answer 126

D To ensure that a lawyer accepts payment for his services in each representation only from the client whose interests the lawyer represented. Answer option D is correct. The rules governing conflicts of interest place restrictions on payments for legal services only to the extent necessary to serve the aim of protecting the lawyer’s loyalty to his client. A lawyer may be paid from a source other than the client, if (1) the client is informed of the arrangement, and consents to it; and (2) the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. Model Rules of Prof’l Conduct R1.7 cmt. 13 (2009). Answer options A, B, and C are all incorrect because each of these options correctly states one of the aims of the conflict-of-interest rules.

Answer 127

C Only when the lawyers disclose the existence of the close relationship, explain how it might affect the representation, and obtain the clients’ written informed consent. Answer option C is correct. Rule 1.7(a)(2) of the Model Rules of Professional Conduct (MRPC) provides that a lawyer is prohibited from representing a client if the representation involves a concurrent conflict of interest, which includes a significant risk that the representation will be materially limited by the lawyer's personal interest. MRPC R1.7(a) (2009). Comment 11 to Rule 1.7 further explains that when lawyers closely related by blood or marriage represent different clients in the same matter or substantially related matters, there may be a significant risk that the lawyers’ relationship could interfere with their loyalty to their clients and their ability to render independent, professional advice. MRPC R1.7 cmt. 11 (2009). The comment advises that the lawyers must ensure that their clients know not only of the existence of the lawyers’ relationship, but also of its implications with respect to their representation. The clients may then give their informed consent to the representation. Answer option C is correct because it accurately and completely states this obligation. Answer option A is necessarily incorrect for the same reasons. Answer option B is incorrect because it omits the lawyers’ obligation to explain how their relationship might affect the representation. Answer option D is incorrect because a close relationship between co-counsel representing clients in a single matter could also have an adverse effect on the representation.

Answer 128

D Yes, because the lawyer’s child is likely to reapply for admission the following year. Answer option D is correct. Lawyers’ personal interests can create material-limitation conflicts and negatively affect their ability to remain loyal to their clients and provide them with competent legal representation. Rule 1.7(a)(2) of the Model Rules of Professional Conduct (MRPC) provides that a lawyer is prohibited from representing a client if the representation involves a concurrent conflict of interest, which includes a significant risk that the representation will be materially limited by the lawyer's personal interest. MRPC R1.7(a) (2009). The Model Rules recognize that a potential conflict may occur where the conflict is personal, rather than professional. The daughter’s prospect of admission to the school creates a personal-interest conflict for the attorney. Therefore, answer option D is correct. Answer options A and B are incorrect because they do not take into account the potential personal conflict of interest posed by the lawyer’s desire to secure admission for his daughter. Answer option C is incorrect because the school’s denial of admission to the lawyer’s child, alone, without the prospect of renewing the application, does not create a risk that the lawyer’s personal interest will limit his efforts on behalf of the teacher in her discrimination action.

Answer 129

D The lawyer is married to an opponent of the death penalty who represents clients on death row. Answer option D is correct. Lawyers’ personal interests can create material-limitation conflicts and negatively affect their ability to remain loyal to their clients and provide them with competent legal representation. Rule 1.7(a)(2) of the Model Rules of Professional Conduct (MRPC) provides that a lawyer is prohibited from representing a client if the representation involves a concurrent conflict of interest, which includes a significant risk that the representation will be materially limited by the lawyer's personal interest. MRPC R1.7(a) (2009). Comment 11 explains that a lawyer can be materially limited by “blood or marriage relationships.” Here, the lawyer’s representation of her client, the government, requires that she dispassionately evaluate death penalty applications. Her marriage to an opponent of the death penalty who represents clients on death row may result in a material limitation under this rule. Answer option A is incorrect because the attorney’s job dissatisfaction, without more, is unlikely to create a conflict of interest with her representation of her client. Answer options B and C are incorrect because a lawyer’s understanding of the direction the Supreme Court may take and her opinions of local prosecutors do not constitute conflicts of interest.

Answer 130

B The lawyer’s sister is seeking to adopt the woman’s child. Answer option B is correct. Lawyers’ personal interests can create material-limitation conflicts and negatively affect their ability to remain loyal to their clients and provide them with competent legal representation. Rule 1.7(a)(2) of the Model Rules of Professional Conduct (MRPC) provides that a lawyer is prohibited from representing a client if the representation involves a concurrent conflict of interest, which includes a significant risk that the representation will be materially limited by the lawyer's personal interest. MRPC R1.7(a) (2009). Here, the lawyer’s family relationship with a prospective adoptive parent for the woman’s child would raise a conflict of interest because the lawyer’s loyalty to her client could be compromised by her loyalty to her sister. Answer option A is incorrect because the lawyer’s knowledge that the woman was an intravenous drug user during her pregnancy does not create a conflict of interest with any other client or with the lawyer’s own personal interest. Answer option C is incorrect because the interests of a lawyer’s former firm are not imputed to the lawyer. Answer option D is incorrect because there is no reason to believe that the lawyer’s preexisting personal relationship with the woman would diminish the lawyer’s loyalty to the woman as a client.

Answer 131

B No, because the information has become generally known. Answer option B is correct. Even after the attorney-client relationship has ended, a lawyer is still generally obligated to maintain the client’s confidentiality. See Model Rules of Prof’l Conduct R1.9(c) (2009). Specifically, the lawyer may not use confidential information acquired during the representation of her former client to the client’s disadvantage in representing a subsequent client, unless the former client gives a written informed waiver to the disclosure. However, where the confidential information has become “generally known,” the lawyer no longer owes a duty of confidentiality. Id. Therefore, answer option B is correct. Answer option A is incorrect because, as noted above, even after the attorney-client relationship has ended, the lawyer is still generally obligated to protect the former client’s confidential information. Answer option C is incorrect because even though the lawyer acquired the information during the representation, it is now generally known. Answer option D is incorrect because a lawyer’s duty to protect a former client’s confidential information is not limitless, as Rule 1.9 details.

Answer 132

C The lawyer would be ethically barred if the proposed patent infringement action is materially adverse to the manufacturer’s interests and implicates the lawyer’s use of the manufacturer’s confidential information acquired during the lawyer’s representation of the manufacturer. Answer option C is correct. Rule 1.9 of the Model Rules of Professional Conduct describes a lawyer’s responsibilities to former clients. See Model Rules of Prof’l Conduct R1.9(a), (c) (2009). Rule 1.9 explains that a lawyer who has formerly represented a client cannot subsequently represent another client (1) with materially adverse interests (2) in the same, or a substantially related, matter. Answer options A and B are incorrect because each of these options states only one of these two factors that together bar an attorney from representing a client due to a former-client conflict. Neither of these factors is alone sufficient to bar the lawyer’s representation of the start-up in the patent infringement action. Comment 3 to the Rule 1.9 defines “substantially related” as involving the same transaction or legal dispute, or when it is likely that the lawyer would have to rely on confidential information gained from the former client in order to represent the new client. Id. at cmt. 3. Here, therefore, the lawyer would be barred if the representation of the start-up in the patent infringement action would (1) be adverse to the manufacturer’s interests and (2) implicate the lawyer’s use of the manufacturer’s confidential information acquired during the lawyer’s representation of the manufacturer, as described in option C. Answer option D is incorrect because Rule 1.9(c) prohibits the use of confidential client information acquired during representation of the former client, not the use of any and all information that the attorney might have acquired during the representation. The involvement of the same technology in both matters might amount to an ethical problem if that technology was confidential, but it is not itself sufficient to bar the lawyer from representing the start-up.

Answer 133

D Whether the competitor is willing to provide written informed consent to the lawyer’s limitations in her representation of the competitor as a result of her representation of the former client. Answer option D is correct. Even after the attorney-client relationship has ended, a lawyer is still generally obligated to maintain the client’s confidentiality. Therefore, former clients can create conflicts that may prevent a lawyer from representing a new client. Rule 1.9 of the Model Rules of Professional Conduct describes a lawyer’s responsibilities in handling conflicts with former clients. See Model Rules of Prof’l Conduct r. 1.9(a), (c). Rule 1.9 explains that a lawyer who has formerly represented a client cannot subsequently represent another client with materially adverse interests in the same or a substantially related matter. Comment 3 to the rule defines “substantially related” as either involving the same transaction or legal dispute, or involving a likelihood that the lawyer will have to rely on confidential information gained from the former client in order to represent the new client. See id. at cmt. 3. The former client may waive the conflict and permit the lawyer to take on the new representation. However, professional conduct rules do not require a waiver of the conflict by the new client. Here, the competing manufacturer is the new client. The lawyer’s conflict potentially violates only loyalties and information belonging to the former client; the new client is not facing any potential harm from the conflict. Therefore, although the former client may need to waive existing conflicts before the lawyer may represent the competitor, the competitor’s own waiver is irrelevant. Answer option C is necessarily incorrect for the same reasons. Answer options A and B are incorrect because if the lawyer’s new representation involves the same or substantially the same matter as the former representation and the two clients (former and new) have materially adverse interests in that matter, then the lawyer has a conflict of interest. This conflict would either need to be waived by the former client or it will prevent the lawyer from engaging in the new representation. See Model Rules of Prof’l Conduct r. 1.9. Accordingly, whether the matter is the same and whether the two manufacturers have materially adverse interests in that matter are both relevant to the lawyer’s ethical responsibilities to her former client.

Answer 134

D A person who consulted with a lawyer about possible divorce proceedings, intending to disqualify the lawyer from representing the person’s spouse. Answer option D is correct. Rule 1.18 of the Model Rules of Professional Conduct defines a prospective client as a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a specific matter. This means that a prospective client has to have in mind a specific claim or legal complaint, rooted in facts. Merely discussing an abstract legal concept is insufficient. Model Rules of Prof’l Conduct R1.18 (2016). A prospective client is one who provides enough factual details for the attorney to determine whether he or she will take on the representation. Comment 2 to Rule 1.18 observes that a person who communicates with a lawyer for the sole purpose of disqualifying the lawyer from representing a particular client is not a prospective client. Id. at R1.18, cmt. 2. Answer option D is correct because the sole reason for the person’s consultation with the lawyer was to disqualify the lawyer from representing the person’s spouse.Answer option A is incorrect because Comment 2 to Rule 1.18 explains that a consultation is likely to have occurred if a lawyer’s website requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings that limit the lawyer’s obligation, and a person provides information in response. See id. Answer option B is incorrect because it describes a person consulting with an attorney about a legal matter (sentencing guidelines) pertaining to her own case. This is a clear-cut instance in which a prospective-client relationship has been formed. Answer option C is incorrect because the payment of a fee is not required to create a prospective client relationship.

Answer 135

C The prospective client disclosed that she had agreed to the developer’s request that they falsify the real estate contract to reflect a lower sale price than she actually paid, so that the developer could reduce his tax liability from the sale Answer option C is correct. Rule 1.18 of the Model Rules of Professional Conduct sets forth a lawyer’s duties to prospective clients. The rule recognizes that because initial lawyer-client consultations are limited in time and depth, and permit the prospective client and the lawyer to decline to proceed with representation, prospective clients receive less protection than clients. See Model Rules of Prof’l Conduct R1.18, cmt. 1 (2009). Nonetheless, Rule 1.18(c) disqualifies a lawyer from continuing to represent a current client if a materially adverse prospective client discloses information about a matter related to a current representation that is “significantly harmful” to the current client in that matter. See id. at R1.18(c). Therefore, a lawyer must obtain enough information to determine whether there is a conflict between a current client and the prospective client, while not eliciting “significantly harmful” information about his current client. Here, the prospective client’s revelation that the lawyer’s current client falsified a real estate contract in order to reduce his tax liability falls within the category of “significantly harmful” information that compels the lawyer’s disqualification from his current representation, absent waiver and screening. Answer option A is incorrect because, while the information clearly presents a conflict of interest, it does not compel the lawyer’s disqualification from his current client’s representation. The fact that the developer sold the parcel to the prospective client is not necessarily significantly harmful to the developer on a matter related to the lawyer’s current representation. Answer option B is similarly incorrect because the real estate contract, without more, does not reveal particular facts harmful to the developer on a matter related to the developer’s representation. Answer option D is incorrect because the prospective client’s revelation that she had heard information about the current client, again does not reveal facts harmful to the developer.

Answer 136

D Yes, because the woman provided information about a specific matter in submitting the online form. Answer option D is correct. Rule 1.18 of the Model Rules of Professional Conduct defines a prospective client as a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a specific matter. This means that a prospective client has to have a specific claim or legal complaint in mind related to a particular factual event that has transpired or will likely transpire. Merely discussing an abstract legal concept is insufficient. A prospective client is one who has, in addition to having a specific claim or legal complaint, provided enough factual details for the attorney to determine whether he or she will represent them. Comment 2 to Rule 1.18 further explains that a consultation is likely to have occurred if a lawyer’s website requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings that limit the lawyer’s obligation, and a person provides information in response. See Model Rules of Prof’l Conduct R1.18, cmt. 2 (2009). Here, the lawyer’s website, apparently without warnings or limitations, solicited information about specific legal matters, to which the woman replied with factual information about a legal problem, rendering her a prospective client. Answer option A is incorrect because, as noted above, the digital interaction constitutes an initial consultation. Answer option B is incorrect because an individual or entity can become a prospective client without regard to whether the attorney has completed a conflict check. Answer option C is incorrect because providing contact information, without more, does not make the woman a prospective client. Here, what makes the woman a prospective client is her response to the lawyer's invitation to "describe your problem," with information about the woman's traffic stop and subsequent ticketing for drunken driving.

Answer 137

B The conflicts of a lawyer that arose from her financial investments are generally not imputed to another lawyer in her firm. Answer option B is the correct answer. Rule 1.10 of the Model Rules of Professional Conduct (MRPC) sets forth the general presumption that while lawyers are associated in a firm, none of them may knowingly represent a client if any one of them alone would be precluded from representing the client under applicable conflict-of-interest rules. In short, individual lawyers’ conflicts of interest are imputed to all lawyers in the firm. See MRPC 1.10 (2009). However, the rule explicitly provides that where a lawyer’s disqualification is based on her personal interest, such as her personal financial investments, and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm, the disqualification is not imputed to the entire firm. Id. at 1.10(a)(1). Answer options A, C, and E are all incorrect because they articulate modifications of the imputation rules based upon law firm size and geography, which are not taken into account by the rules. Answer option D is incorrect because Rule 1.10, Comment 4 notes that the rule does not prohibit representation by others in a law firm where the person prohibited from involvement is a nonlawyer. Id. at 1.10 cmt. 4.

Answer 138

D A lawyer in the firm had successfully represented a local fishery in a civil action to recover damages from the chemical plant based on the plant’s discharge of chemical waste that harmed the fishery’s farm. Answer option D is correct. Rule 1.10 of the Model Rules of Professional Conduct (MRPC) sets forth the general presumption that while lawyers are associated in a firm, none of them may knowingly represent a client if any one of them alone would be precluded from representing the client under applicable conflict of interest rules. In short, individual lawyers’ conflicts of interest are imputed to the entire firm. See MRPC 1.10 (2009). Here, because one of the firm’s lawyers previously represented the fishery in an action against the chemical plant, and the fishery’s claim was materially adverse to the chemical plant in a substantially related claim (the discharge of chemical waste), option D’s lawyer would be precluded from representing the chemical plant under Rule 1.9 of the Model Rules of Professional Conduct. See id. at 1.9. Because the fishery lawyer’s own conflict is imputed to the entire firm, the firm is precluded from representing the chemical plant in its current defense. Answer option A is incorrect because although one of the firm’s lawyers had previously been employed by another chemical company, that adversity is not the type of adverse relationship the conflict of interest rules address. Rule 1.9 would not disqualify the lawyer from representing the chemical company unless the other lawyer had represented the other chemical plant in the same, or a substantially related, matter in which the two plants’ legal interests were adverse. Because option A’s lawyer would not be disqualified, there is no conflict to impute to the firm. Answer option B is incorrect because although Rule 1.7 of the Model Rules of Professional Conduct advise that a lawyer’s own interests may not have an adverse effect on representation of a client, Rule 1.10 provides that personal-interest conflicts are generally not imputed to the other lawyers in the firm. See id. at 1.7 cmt. 10; 1.10. Answer option C is incorrect because there is no conflict of interest where a former lawyer in the firm had represented a client who again seeks the firm’s representation.

Answer 139

A Whether the lawyer who left the firm has provided her written informed consent to the representation. Answer option A is correct. Comments 2 and 3 to Rule 1.10(b) of the Model Rules of Professional Conduct explain that after a lawyer has left a firm, the duties of loyalty and confidentiality follow the lawyer. This means that the firm may be able to represent someone materially adverse to one of the formerly associated lawyer’s clients unless (1) the matter is the same or substantially related to the lawyer’s representation, and (2) any lawyer remaining in the firm has protected, confidential information that is material to the matter. Answer options B, C, and D are all incorrect because each of these options states one of these requirements. Answer option A, however, misstates a requirement. While a former client may, in fact, waive this type of conflict, the attorney does not hold that power. Only clients may waive conflicts.

Answer 140

C No, because the tenant was not consulting with the lawyer about the possibility of forming a client-lawyer relationship. Answer option C is correct. Rule 1.18 of the Model Rules of Professional Conduct (MRPC) provides that a prospective client is "a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. . . .” Model Rules of Prof'l Conduct r. 1.18(a) (Am. Bar Ass'n 2018). The determination of whether a person's communication with a lawyer constitutes a consultation depends on the circumstances of the communication. See id. cmt. [2]. Here, the facts do not suggest that the tenant was consulting with the lawyer and seeking to form a client-lawyer relationship. Instead, the tenant was complaining about the dispute with her landlord to another guest at a party, and that guest happened to be a lawyer who gave his opinion about the landlord's responsibility for the leaky ceiling. Under these circumstances, an ethics committee is not likely to find that the tenant is the lawyer's prospective client. Answer option A is incorrect because the tenant did not seek the lawyer’s advice. Instead, the lawyer, in the context of a social conversation, volunteered the information that he was a lawyer and offered his opinion gratuitously. Answer option B is incorrect because under MRPC 1.18, a person must be seeking to form a client-lawyer relationship to be deemed a prospective client. The lawyer learning information about the tenant, without the tenant seeking to form the relationship, is insufficient to render the tenant a prospective client. Answer option D is incorrect because the fact that the tenant did not pay the lawyer for his advice has no bearing on whether she is a prospective client.

Answer 141

D Whether the lawyer's former representation of the husband in the inheritance dispute resolved favorably to the husband. Answer option D is correct. Even after the termination of the lawyer-client relationship, a lawyer has continuing duties to his former clients. Rule 1.9 of the Model Rules of Professional Conduct details lawyers’ ethical duties to their former clients. See Model Rules of Prof’l Conduct R. 1.9 (Am. Bar. Ass'n 2018). The rule provides that a lawyer generally remains obligated to keep former clients’ information confidential. Id. Moreover, a lawyer may not represent a client with interests materially adverse to a former client in the same, or a substantially related, matter. Id. at R. 1.9(a). Comment 3 to the rule defines “substantially related” as involving the same transaction or legal dispute, or when it is likely that the lawyer would have to rely on confidential information gained from the former client in representing the new client. Id. at cmt 3. In many respects, the ethical constraints regarding former clients are similar to those regarding current clients. However, there is one important distinction. Rule 1.9, unlike Rule 1.7, does not restrict a former client’s ability to waive a conflict. See 1.7(b). All conflicts are waivable under Rule 1.9 provided that the former client gives written informed consent to the representation. Id. at R. 1.9. Whether a lawyer's representation of a former client resolved favorably to the client is not, however, dispositive of whether the lawyer may ethically represent a subsequent client. Therefore, here, whether the lawyer's former representation of the husband in the inheritance dispute resolved favorably to the husband is not dispositive of whether the lawyer may ethically represent the woman. Answer options A, B, and C are incorrect because, as explained above, each answer accurately states a consideration that is dispositive of whether the lawyer may ethically represent the woman in the current divorce proceedings.

Answer 142

C Encourage the inventor to get another lawyer’s advice about the venture. Answer option C is correct. Rule 1.8 of the Model Rules of Professional Conduct (MRPC) generally prohibits lawyers from engaging in business transactions with clients. See MRPC R. 1.8(a). Notwithstanding this blanket prohibition, the rule does permit lawyers and their clients to engage in business transactions that satisfy three requirements established to protect the client from possible lawyer overreaching. See id. at R. 1.8(a)(1)-(3). These requirements are: (1) the transaction must be fair and reasonable to the client and fully disclosed and transmitted to the client in an easy-to-understand writing; (2) the client must be advised of the propriety of seeking independent legal counsel about the transaction and given reasonable time to do so; and (3) the client must give written, informed consent to the essential terms of the transaction and the lawyer’s role in it. Id. Here, encouraging the inventor to seek independent legal advice is the only answer option that satisfies a Rule 1.8 requirement. Answer option A is incorrect, because Rule 1.8 requires that the lawyer disclose fully all the details of the business transaction. Answer option B is incorrect, because Rule 1.8 requires that the lawyer disclose all the transaction’s details in easy-to-understand written format and that the client provide written, informed consent. Answer option D is incorrect, because Rule 1.8 requires that the terms of the lawyer-client business transaction be fair and reasonable to the client objectively, not merely in the lawyer’s subjective opinion.

Answer 143

A A person who consults with a lawyer to bring an action for intentional infliction of emotional distress against noisy neighbors. Answer option A is correct. Rule 1.18 of the Model Rules of Professional Conduct (MRPC) defines a prospective client as a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a specific matter. MRPC R. 1.18(a) (2016). The prospective client must have a specific claim or legal complaint. Id. Merely discussing an abstract legal concept is insufficient. A prospective client is one who, in addition to having a specific claim or legal complaint, provides enough factual details for the attorney to determine whether she will represent the client. Id. at cmt. 3. The payment of a fee is not required. Moreover, Rule 1.18 does not predicate the characterization as a prospective client on the validity of the putative legal issue. Id. The fact that the person sought a lawyer’s representation to bring what she believed to be a valid claim satisfies Rule 1.18’s definition. Answer option B is incorrect, because comment 2 to Rule 1.18 explicitly notes that “a person who communicates with a lawyer for the purpose of disqualifying the lawyer” is not a prospective client. MRPC R. 1.18 at cmt. 2 (2016). Answer option C is incorrect, because here, the person’s consultation was not about a specific legal matter. Answer option D is incorrect, because as comment 2 to Rule 1.18 notes, a person who provides information to a lawyer in response to advertising or a description of the lawyer’s education, experience, areas of practice, and contact information, is not a prospective client.

Answer 144

D No, because each sister seeks to assert a claim against the other. Answer option D is correct. Rule 1.7 of the Model Rules of Professional Conduct prohibits, with certain exceptions, a lawyer’s representation of a client that poses a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client, or (2) there is a significant risk that the representation of one or more clients will be limited materially by the lawyer’s responsibilities to another client, to a former client, to a third person, or by the lawyer’s own personal interest. Model Rule of Professional Conduct 1.7(a). However, a lawyer may represent a client, even though the representation poses a concurrent conflict of interest, if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, (2) the representation is not prohibited by law, (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same proceeding, and (4) each affected client provides informed consent, in writing. Model Rule of Professional Conduct 1.7(b). Here, each sister seeks the solo practitioner’s representation in challenging her father’s estate. Each sister plans to argue that the other sister is inheriting too much from her father’s estate, and had exercised undue influence over their father and committed fraud. The sisters’ interests are therefore directly adverse to one another. See Model Rule of Professional Conduct Rule 1.7(a)(1). The solo practitioner cannot represent both sisters in challenging their father’s estate, because doing so poses a concurrent conflict of interest. Answer options A and B are necessarily incorrect for this same reason. Answer option B is also incorrect because the sisters cannot provide informed consent to this particular concurrent conflict of interest. If the practitioner represented both sisters in challenging their father’s estate, each sister would be asserting claims of undue influence and fraud against the other. Therefore, the sisters cannot provide informed consent to the conflict, because the representation would involve clients asserting claims against each other in the same proceeding. See Model Rule of Professional Conduct Rule 1.7(b)(3). Answer option C is incorrect because the fact that the sisters are seeking representation in the same matter does not necessarily create a concurrent conflict of interest. For example, had the sisters sought joint representation in challenging the estate as against another relative, in which the sisters’ interests were aligned, the representations would not pose a conflict. Rather, what creates the conflict here is that each sister wants to make arguments and claims that are directly adverse to the other.

Answer 145

E The client must seek independent legal counsel in the transaction. Answer option E is correct. Rule 1.8 of the Model Rules of Professional Conduct sets forth the general prohibition against lawyers engaging in business transactions with their clients. See Model Rules of Prof’l Conduct r. 1.8(a) (Am. Bar Ass’n 2016). Notwithstanding this blanket prohibition, the rule permits lawyers and their clients to engage in business transactions that satisfy three requirements established to protect the client from possible lawyer overreaching. See id. at r. 1.8(a)(1-3). These requirements are: (1) the transaction must be fair and reasonable to the client and must be fully disclosed and transmitted to the client in an easy-to-understand writing, (2) the client must be advised of the propriety of seeking independent legal counsel about the transaction and must be given reasonable time to do so, and (3) the client must give written informed consent to the essential terms of the transaction and the lawyer’s role in it. Id. Although the rule requires the lawyer to advise the client to seek independent legal counsel and a reasonable time in which to do so, the rule does not require that the client actually seek independent counsel. The client may, at her election, decline to seek independent legal counsel, which will be acknowledged in her written informed consent to the transaction. Therefore, answer option E is correct because the client is not required to actually seek independent legal counsel. Answer options A, B, C, D, and F are incorrect because each states one of Rule 1.8’s requirements.

Answer 146

D Fair and reasonable to the client. Answer option D is correct. Rule 1.8 of the Model Rules of Professional Conduct generally prohibits lawyers from engaging in business transactions with their clients except under certain conditions. See Model Rules of Prof’l Conduct r. 1.8(a)(1)-(3) (Am. Bar Ass’n 2016). The threshold condition is that the transaction must be fair and reasonable to the client. Id. at r. 1.8(a)(1). Therefore, answer option D is correct. Answer options A, B, C, and E are necessarily incorrect as a result.

Answer 147

D The lawyer may consult the cardiologist and is not subject to any additional ethical requirements. Answer option D is correct. Rule 1.8 of the Model Rules of Professional Conduct generally prohibits lawyers from engaging in business transactions with clients except under certain conditions. See Model Rules of Prof’l Conduct r. 1.8(a) (Am. Bar Ass’n 2016). Specifically, the rule does not apply when a lawyer receives a product or service that the client regularly provides to others, because in that situation the lawyer has no advantage in dealing with the client, and the rule’s restrictions are unnecessary and impracticable. Id. at r. 1.8 cmt. 1. Therefore, answer option D is correct because the cardiologist regularly provides medical services to others, and the lawyer has no advantage in dealing with the client. Answer options A, B, and C are incorrect because each sets forth a requirement that does not apply to these types of transactions.

Answer 148

B The lawyer may rent the venue if the terms of the transaction are fair and reasonable to the client, the lawyer advises the client to seek independent legal advice, and the lawyer obtains the client’s written informed consent to the terms and disadvantages of the transaction. Answer option B is correct. Rule 1.8 of the Model Rules of Professional Conduct sets forth the general prohibition against lawyers engaging in business transactions with their clients. See Model Rules of Prof’l Conduct r. 1.8(a) (Am. Bar Ass’n 2016). Notwithstanding this blanket prohibition, the rule does permit lawyers and their clients to engage in business transactions if they satisfy three requirements established to protect the client from possible lawyer overreaching. See id. at r. 1.8(a)(1)-(3). These requirements are: (1) the transaction must be fair and reasonable to the client and must be fully disclosed and transmitted to the client in an easy-to-understand writing, (2) the client must be advised of the propriety of seeking independent legal counsel about the transaction and must be given reasonable time to do so, and (3) the client must give written informed consent to the essential terms of the transaction and the lawyer’s role in it. Id. Comment 1 of the rule further specifies that the rule does not apply when a lawyer receives a product or service that the client regularly provides to others, because in that situation the lawyer has no advantage in dealing with the client and the rule’s restrictions are unnecessary and impracticable. Id. at r. 1.8 cmt. 1. Here, however, the contemplated rental is outside the services that the commercial business developer generally markets to others. Therefore, the proposed rental is subject to Rule 1.8’s requirements. The lawyer must ensure that the transaction is fair and reasonable to the client, the lawyer must advise the client to seek independent legal advice about the transaction, and the client must provide his written informed consent to the terms and disadvantages of the transaction. Answer options A, C, and D are necessarily incorrect for those reasons.

Answer 149

C The lawyer may assist his client with the liquidation of her retirement fund if the terms of the transaction are fair and reasonable to the client, the lawyer advises the client to seek independent legal advice, and the lawyer obtains the client’s written informed consent to the terms and disadvantages of the transaction. Answer option C is correct. Rule 1.8 of the Model Rules of Professional Conduct sets forth the general prohibition against lawyers engaging in business transactions with their clients. See Model Rules of Prof’l Conduct R. 1.8(a) (Am. Bar Ass’n 2016). Notwithstanding this blanket prohibition, the rule does permit lawyers and their clients to engage in business transactions if they satisfy three requirements established to protect the client from possible lawyer overreaching. See id. at r. 1.8(a)(1)-(3). These requirements are: (1) the transaction must be fair and reasonable to the client and must be fully disclosed and transmitted to the client in an easy-to-understand writing, (2) the client must be advised of the propriety of seeking independent legal counsel about the transaction and must be given reasonable time to do so, and (3) the client must give written informed consent to the essential terms of the transaction and the lawyer’s role in it. Id. Moreover, although Rule 1.8(e) explicitly prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, the lawyer’s assisting the client with liquidating her retirement fund is not the type of financial assistance the rule addresses. Id. at 1.8(e). Therefore, the lawyer may assist his client with the liquidation of her retirement funds to pay his bill, subject to the rule’s requirements. Answer option A is incorrect because nothing in the fact pattern implicates mandatory withdrawal from the representation. Answer option B is incorrect because the lawyer is not required to continue representing the client nor wait until the final settlement in order to collect his fees. Answer option D is incorrect because the lawyer’s assistance in liquidating the client’s retirement fund is a transaction outside the scope of their attorney-client relationship and thus subjects the lawyer to the constraints of Rule 1.8.

Answer 150

C A lawyer’s duties to her current and former clients are the same with respect to confidentiality but differ slightly with respect to the representation of clients with adverse interests. Answer option C is correct. Rules 1.7 and 1.9 of the Model Rules of Professional Conduct detail lawyers’ ethical responsibilities to current and former clients, respectively. See Model Rules of Prof’l Conduct r 1.7, 1.9 (Am. Bar Ass’n 2016). Both rules provide that lawyers may not reveal a current or former client’s confidential information, absent the client’s waiver. The rules also set forth a general prohibition against a lawyer’s representation of clients with adverse interests. See id. at r. 1.7(a)(1), r. 1.9(a). However, Rules 1.7 and 1.9 differ slightly in their constraints. Rule 1.7 provides that concurrent client representation is precluded when the representation of one client is directly adverse to another client. Rule 1.9 provides that a lawyer may not represent a client in the “same or a substantially related matter” in which the client’s interests are materially adverse to the former client. Therefore, Rule 1.9 gives the lawyer the ability to represent a client with interests adverse to a former client, so long as the matters are not the same or substantially related. Answer options A, B, and D are incorrect for that reason and because they do not recognize the different responsibilities attendant to representation of former and current adverse clients. Answer option D is also incorrect because a lawyer’s ethical duties to former clients are not predicated on which party terminated the attorney-client relationship. The ethical requirements apply regardless of how, or by whom, the attorney-client relationship was terminated.

Answer 151

B The lawyer concurrently represents two clients who are directly adverse to each other in the same matter. Answer option B is correct. Conflicts of interest may arise for lawyers among current, former, and prospective clients. Generally, a client may consent to, or waive, a conflict of interest so long as the consent is informed and in writing. However, a client cannot waive certain types of conflicts, regardless of the client’s knowledge and consent. See Model Rules of Prof’l Conduct r. 1.7(b) (Am. Bar Ass’n 2016). One such conflict occurs if the representation involves an assertion of a claim by one client against another client represented by the same lawyer in the same litigation. Id. at r. 1.7(b)(3). Answer option B is thus correct because it articulates a conflict that a client may never waive. Answer options A, C, and D are incorrect because each articulates circumstances that permit waiver provided certain conditions are satisfied.

Answer 152

B No, because the lawyer must never concurrently represent multiple parties who are directly adverse to one another in the same litigation. Answer option B is correct. Rule 1.7 of the Model Rules of Professional Conduct provides that, generally speaking, a lawyer may "not represent a client if the representation involves a concurrent conflict of interest." Model Rules of Prof’l Conduct r. 1.7(a) (Am. Bar Ass’n 2016). The rule provides two definitions for what constitutes a concurrent conflict of interest. There is a concurrent conflict of interest if the representation of one client is "directly adverse" to another client. Id. at r. 1.7(a)(1). There is also a concurrent conflict of interest if there is "a significant risk" that the lawyer's representation of a client would be "materially limited" by the lawyer's responsibility to (1) another present or former client, (2) a third-party, or (3) the lawyer's own personal interest. Id. at r. 1.7(a)(2). Notwithstanding this general prohibition, the rule provides that even if there is a concurrent conflict of interest, a lawyer may represent multiple clients in the same dispute provided that (1) the lawyer believes that he or she can provide competent representation to all clients, (2) the law does not prohibit the representation, (3) the representation does not involve one client's assertion of a claim against another client in the same litigation or other proceeding before a tribunal, and (4) each client gives his or her written informed consent. Id. at r. 1.7(b). Here, because the contract dispute involves the assertion of a claim by one of the parties against the other, the parties are directly adverse to each other. Therefore, the dispute falls squarely within the rule's first definition of a prohibited concurrent conflict of interest. And, because the parties are directly adverse to each other in the same litigation, the rule's exception that permits clients to waive a conflict of interest does not apply. Accordingly, the lawyer may not represent both parties, even with their written informed consent. Id. at r. 1.7(b)(3). Answer option A is incorrect because, as explained above, although Rule 1.7 generally prohibits concurrent representation of parties in the same matter, it does permit concurrent representation in certain narrow circumstances, such as those that permitted the initial representation in the restaurant sale. See id. at r. 1.7(b). It is worth noting that had the parties sought to resolve their dispute through mediation, rather than through litigation, the rule's exception that permits concurrent representation of directly adverse clients would apply to permit the representation. Answer option C is incorrect because, as explained above, if parties are directly adverse to one and other in the same litigation or proceeding before a tribunal, the rule prohibits concurrent representation even if all the parties assent to the representation. Id. at r. 1.7(b). Answer option D is incorrect because although the dispute arose from the original sale, the parties are now directly adverse to one and other in litigation, which, as explained above, prevents the lawyer from representing them concurrently. Id.

Answer 153

A Yes, because personal relationships are not imputed to a lawyer’s firm. Answer option A is correct. Rule 1.7 of the Model Rules of Professional Conduct governs lawyer behavior in the context of concurrent conflicts of interest. See generally, Model Rules of Prof’l Conduct r. 1.7 (Am. Bar Ass’n 2016). Comment 11 to Rule 1.7 notes that when lawyers representing different clients in the same matter are related, there may be a significant risk that the lawyers’ relationship might compromise the clients’ confidentiality and the lawyers’ loyalty and professional judgment. Id. at r. 1.7 cmt. 11. Therefore, the husband’s and wife’s representation of adverse clients would require the clients’ written informed consent and may be inadvisable due to the nature of the representation. Here, however, the husband and wife would not be representing adverse clients. Instead, the husband’s firm would be adverse to the wife’s client. Because a lawyer’s personal interest conflict is not imputed to the lawyer’s firm, the husband’s personal interest conflict here would not be imputed to the firm. See id. at r. 1.10. Therefore, the wife may represent the doctor, although it is advisable for the husband’s firm to screen him from the matter. Answer option B is incorrect because joint representation of clients with adverse interests is not the only ethical barrier to a lawyer’s representation. Answer options C and D are incorrect because, as noted above, lawyers’ personal interest conflicts are not imputed to their entire firms.

Answer 154

C The lawyer is retained by the restaurant in the same matter. Answer option C is correct. Rule 1.7 of the Model Rules of Professional Conduct details lawyers’ ethical constraints and considerations if the joint representation of multiple clients raises a concurrent conflict of interest. See Model Rules of Prof’l Conduct r. 1.7 (Am. Bar Ass’n 2016). The rule generally prohibits a lawyer from representing a client who is directly adverse to another client or representing a client if there is a significant risk that a lawyer’s representation will be materially limited by her obligations to another person or by the lawyer’s own personal interest. Id. at r. 1.7(a). However, the rule permits clients to waive even directly adverse and materially limited conflicts, subject to four limitations. First, the lawyer must reasonably believe that she will be able to provide competent and diligent representation to all affected clients despite the conflict of interest. Second, the representation must not be prohibited by law. Third, the representation must not involve clients asserting claims against each other in the same litigation or matter before a tribunal. Fourth, all clients affected by a conflict of interest must give written informed consent to the continued representation. Id. at r. 1.7(b). Here, if the lawyer has been retained by the restaurant in the same matter, the representation of the prospective client would involve clients asserting claims against each other in the same litigation, which is a nonwaivable conflict of interest. Id. at r. 1.7(b)(3). Therefore, the lawyer would be disqualified from representing the client if already retained to represent the restaurant. Answer options A and B are incorrect because although a lawyer’s personal interest could materially limit her representation of a client, personal interest itself does not automatically require a lawyer’s disqualification. Instead, the lawyer may represent the client provided the lawyer first discloses her personal interest and obtains the client’s written, informed consent to the representation. Answer option D is incorrect for the same reason and because personal interest conflicts are not imputed to other lawyers in the firm.

Answer 155

C The estate paying the lawyer's legal fees with cash from the estate. Answer option C is correct. Rule 1.8 of the Model Rules of Professional Conduct generally prohibits lawyers from entering into business transactions with clients. See Model Rules of Prof’l Conduct r. 1.8. Comment 1 to the rule details the types of interactions prohibited by the rule. The rule applies even to transactions not closely related to the lawyer’s representation of the client and to a lawyer engaged in the sale of goods and services related to the lawyer’s practice. Id. at cmt 1. The rule also applies to a lawyer purchasing property from an estate the lawyer represents. The rule does permit ordinary fee arrangements, but it prohibits accepting an interest in a client’s business as payment for legal services. If a transaction is a business transaction, it will be prohibited by Rule 1.8 unless the transaction can meet three special requirements: (1) the transaction must be on fair and reasonable terms disclosed to the client; (2) the client must be advised to, and given the opportunity to, seek outside counsel for the matter; and (3) the lawyer must obtain written informed consent to the basic terms of the deal and the lawyer’s role in it. Here, the estate’s offer to pay for its legal fees with money is an ordinary fee arrangement. An ordinary, monetary fee arrangement is not a prohibited business transaction with a client under Rule 1.8. Therefore, this transaction will be allowed regardless of whether the three special requirements are met. Answer option A is incorrect because, under Comment 1 to Rule 1.8, a transaction in which a client gives the lawyer an interest in the client’s business as payment for legal services is a generally prohibited business transaction. This type of transaction will be allowed only if it meets the three special requirements. Answer option B is incorrect because any loan between an attorney and a client is considered a business transaction covered by Rule 1.8, even if the loan is not related to the attorney’s representation of the client. See id. at cmt 1. Therefore, the attorney’s personal loan to the entrepreneur is a business transaction that is prohibited by Rule 1.8 unless the three special criteria are met. Answer option D is incorrect because a lawyer’s purchase of property from a client estate is a business transaction that is generally prohibited by Rule 1.8. Here, the lawyer’s purchase of the antique car from the estate qualifies as a business transaction under the rule. Therefore, the default position is that this transaction is prohibited. However, note that because the lawyer is purchasing the vehicle at fair-market value, the first of the special requirements is likely met. If the parties can meet the other two special requirements, this otherwise prohibited business transaction may ultimately be allowed by the rule.

Answer 156

B The lawyer must get the seller’s and the buyer’s written informed consent to represent both parties. Answer option B is correct. Rule 1.7(a) of the Model Rules of Professional Conduct prohibits a lawyer from representing a client if it creates a concurrent conflict of interest. Under Rule 1.7(a), a concurrent conflict of interest exists if two clients are directly adverse to each other or if representation of one client will materially limit the representation of the other. See Model Rules of Prof’l Conduct r. 1.7(a) (Am. Bar Ass’n 2016). The simultaneous representation of the buyer and the seller likely satisfies both the directly adverse and materially limited standards of Rule 1.7(a) because the parties are the buyer and the seller in a business transaction, and representing one’s interests may make it extremely difficult to adequately represent the other’s. However, the rule permits representation if (1) the lawyer reasonably believes he can represent both of them despite the conflict; (2) the representation is not prohibited by law; (3) the clients are not on opposing sides in litigation; and (4) all affected clients give their written, informed consent to the arrangement. Id. at r. 1.7(b). If the lawyer believes that he can represent them both despite the conflict, he may do so if he obtains written informed consent from both the buyer and the seller. Answer option A is incorrect because Rule 1.7(b) requires written informed consent from all affected clients, not just one. Id. Answer option C is incorrect because, as noted above, the representation of both parties is not prohibited if the lawyer satisfies the criteria set forth in Rule 1.7(b). Answer option D is incorrect because Rule 1.7 applies even if the parties are not involved in litigation.

Answer 157

A A matter that involves the same lawyer. Answer option A is correct. Rule 1.9 of the Model Rules of Professional Conduct describes a lawyer’s responsibilities to former clients. See Model Rules of Prof’l Conduct r. 1.9(a), (c) (Am. Bar Ass’n 2016). Rule 1.9 provides that a lawyer who has formerly represented a client cannot subsequently represent another client with materially adverse interests in the same, or a substantially related, matter. Id. Comment 3 to the rule defines “substantially related” as involving the same transaction or legal dispute or cases in which it is likely that the lawyer would have to rely on confidential information gained from the former client in order to represent the new client. Id. at cmt. 3. The term “substantially related” does not include matters involving the same lawyer. Answer options B, C, and D are incorrect because each correctly identifies matters that are substantially related.

Answer 158

B Yes, because the lawyer did not advise her client to seek independent legal counsel. Answer option B is correct. Rule 1.8 of the Model Rules of Professional Conduct generally prohibits lawyers from entering into business transactions with clients. See Model Rules of Prof’l Conduct r. 1.8. The rule also prohibits lawyer from engaging in a business transaction in which the lawyer knowingly gains an ownership, possessory, security, or other pecuniary interest adverse to a client. See id. However, Rule 1.8 will allow a lawyer to engage in an otherwise prohibited business transaction if the following three criteria are met: (1) the transaction must be fair and reasonable to the client and disclosed in writing and signed by the client, (2) the client must be advised in writing to seek independent counsel and have a reasonable opportunity to do so, and (3) the client must give written informed consent to the essential terms of the transaction and the lawyer’s role. See id. at r. 1.8(a). Here, the lawyer became involved in a business transaction involving her client. As part of the lawyer’s involvement, the lawyer suggested acquiring an ownership interest in part of the parcel. This interest was adverse to the client’s interest in owning the entire parcel (probably especially the desirable part targeted by the lawyer). Even if the lawyer’s transaction was technically with the third-party seller, this adverse interest means that the transaction is still a prohibited business transaction under Rule 1.8. Therefore, the lawyer’s purchase would be allowed only if it met all three of the special criteria set out in Rule 1.8(a). However, the lawyer never advised her client to seek independent counsel on the proposed deal. This means that the second special criteria was not met, and the lawyer’s purchase of the small parcel was prohibited by Rule 1.8. Answer option C is necessarily incorrect for the same reasons. Answer option A is incorrect because Rule 1.8 does not prohibit lawyers from transacting business with clients in all situations. Although the default position is that the lawyers are prohibited from transacting business with clients, some transactions are allowed if they meet the three special criteria set out in Rule 1.8(a). Answer option D is incorrect because informed consent is not the only requirement for business transactions between lawyers and their clients. Further, without having an opportunity to consult with outside counsel, it is possible that the client’s consent was not truly informed. Regardless, even if the client did give informed consent here, the lawyer’s failure to advise the client to seek independent legal advice would still mean that this transaction cannot fulfill all three requirements to be a specially permitted business transaction.

Answer 159

D That there is a significant risk that the lawyer's negligence action will materially limit the dealership's representation by the firm's other lawyers. Answer option D is correct. The lawyer’s own negligence action against the dealership is a personal-interest conflict under Rule 1.7(a)(2) of the Model Rules of Professional Conduct. Namely, the lawyer’s own economic interest in suing the dealership could compromise his ability to provide independent legal advice to the dealership, were he asked to do so. See Model Rules of Prof’l Conduct r. 1.7(a) (Am. Bar Ass’n 2016). Under MRPC 1.10(a), if one lawyer in a firm has a conflict of interest, that conflict is imputed to all lawyers in the firm unless: (1) the conflict is based on the lawyer’s personal interest, and (2) there is no significant risk of the conflict materially limiting the representation by the firm’s other lawyers. Id. at r. 1.10(a). Here, because the lawyer’s conflict is based on his personal interest, the conflict will be imputed to the entire law firm if there is a significant risk that the conflict would materially limit the dealership's representation by other lawyers in the firm. Therefore, the fact that there is a significant risk that the lawyer's negligence action will materially limit the dealership's representation by the firm's other lawyers is dispositive of whether the lawyer's personal interest conflict must be imputed to the entire firm. Answer options A, B, and C are necessarily incorrect because those facts are not dispositive of whether a lawyer's personal interest conflict must be imputed to the lawyer's entire firm. However, note that all these facts would be relevant to whether lawyer does or does not have a conflict of interest himself.

Answer 160

D The lawyer’s personal-interest presents a significant risk of materially limiting the client’s representation by the firm’s other lawyers. Answer option D is correct. Under Rule 1.10(a) of the Model Rules of Professional Conduct, if one lawyer in a firm has a conflict of interest, that conflict is imputed to all lawyers in the firm unless (1) the conflict is based on the lawyer’s personal interest, and (2) there is no significant risk of the conflict materially limiting the representation of the client by the firm’s other lawyers. Model Rules of Prof’l Conduct r. 1.10(a) (Am. Bar Ass’n 2016). Answer options A, B, and C are incorrect because they do not state the standard for determining if a conflict must be imputed to other lawyers in a firm.

Answer 161

B Under no circumstances. Answer option B is correct. A lawyer cannot accept media rights based substantially on information relating to the representation in exchange for representing a client. Such an agreement poses too great of a risk that the lawyer will handle the case with an eye toward maximizing the publicity value of the case, rather than pursuing the best results for the client. Note that a lawyer can make an agreement for literary or media rights after the conclusion of representation. Additionally, a lawyer can accept literary or media rights that are not based on information relating to the representation. Here, the fact pattern specifies that the lawyer wished to represent the client in exchange for the media rights to the client’s case. This agreement is not acceptable under any circumstances. Answer option A is incorrect. A lawyer cannot accept media rights based substantially on information relating to the representation in exchange for representing a client under any circumstances. Although a lawyer may accept media rights to matters unrelated to the representation, or make an agreement for media rights related to the representation after the representation has concluded, neither situation is present here. Answer option C is incorrect. A lawyer cannot accept media rights based substantially on information relating to the representation in exchange for representing a client under any circumstances. A client’s informed, written consent can overcome other conflicts, but not the conflict caused by a lawyer accepting payment in the form of media rights to a client’s story. Answer option D is incorrect. A lawyer cannot accept media rights based substantially on information relating to the representation in exchange for representing a client under any circumstances. The fact that the terms of a transaction between a lawyer and a client are overall fair, reasonable, and fully disclosed to the client permits certain business transactions between a lawyer and a client, but not payment in the form of media rights to a client’s story.

Answer 162

A Yes, because the firm can screen the lawyer and notify the business owner of the new representation and the screening process. Answer option A is correct. Normally, if an attorney has a conflict of interest on a case, that conflict is imputed to the entire firm. However, certain conflicts are not imputed. Specifically, if a lawyer’s conflict is due to a duty to a former client that arises out of the lawyer’s association with a prior firm, the lawyer’s current firm can screen the lawyer. If the firm screens the lawyer, apportions no part of the fee from the matter to the lawyer, and notifies the former client of the screening process, the new firm can represent a client with interests adverse to the former client even without the former client’s consent. Here, the lawyer obtained confidential financial information from the business owner while working at his previous firm. This information could be used to benefit the wife in the divorce case. Therefore, a conflict exists. However, the conflict is due to the lawyer’s representation of a former client while at the previous firm. Therefore, the conflict is not necessarily imputed to the rest of the firm. If the new firm screens the lawyer and notifies the business owner of the screening process, the new firm can represent the wife. Answer option B is incorrect. Lawyers still owe duties to former clients who can create conflicts of interest. Although the lawyer’s conflict will not necessarily be imputed to the rest of the firm, the firm must still screen the lawyer and notify the business owner of the screening process. Answer option C is incorrect. The new firm must only notify the business owner and inform him of the screening process. The new firm does not have to obtain the business owner’s consent to the representation, because the lawyer’s representation will not be imputed to the rest of the firm if he is properly screened. Answer option D is incorrect. The situation does not present an unwaivable conflict. Here, the lawyer could represent the wife if the business owner waived the conflict. Furthermore, the new firm can represent the wife even without the business owner’s consent if it screens the lawyer and informs the business owner of the screening process.

Answer 163

C No, because the neighbor is not related to the lawyer or the husband. Answer option C is correct. A lawyer generally cannot draft a written instrument giving a substantial gift to the lawyer or a member of the lawyer’s family. However, an exception exists if either the lawyer or the recipient of the gift is related to the donor. Here, neither the lawyer nor her husband is related to the neighbor. Therefore, the lawyer cannot draft a will for the neighbor leaving a substantial gift to the lawyer’s husband, because the lawyer’s husband is a member of the lawyer’s family. Answer option A is incorrect. The Model Rules of Professional Conduct provide that a lawyer cannot draft a written instrument giving a substantial gift to the lawyer or a member of the lawyer’s family, unless the lawyer or the recipient of the gift is related to the donor. Just as the lawyer cannot ethically draft a will for the neighbor leaving a substantial gift to herself, she cannot draft a will leaving a substantial gift to any member of her family, including her husband. Answer option B is incorrect. A lawyer cannot draft a written instrument giving a substantial gift to the lawyer or a member of the lawyer’s family, unless the lawyer or the recipient of the gift is related to the donor. Here, it is irrelevant that the neighbor initiated the request. Answer option D is incorrect. A lawyer cannot draft a written instrument giving a substantial gift to the lawyer or a member of the lawyer’s family, unless the lawyer or the recipient of the gift is related to the donor. Here, it is irrelevant whether a preexisting client-lawyer relationship exists.

Answer 164

B Yes, because there is a risk that the lawyer’s representation of one of the defendants could be materially affected by his responsibilities to the other. Answer option B is correct. Under Model Rule of Professional Conduct 1.7(a)(2), a concurrent conflict of interests exists if there is a risk that the lawyer’s representation of one client may be affected by his responsibilities to the other. Comment 8 explains that the lawyer should consider whether the clients may eventually have a difference in interests and, if so, whether the difference will “materially interfere with the lawyer’s independent professional judgment” in providing legal representation. Model Rule 1.7(b)(4) provides that the lawyer must obtain written informed consent to continue with the representation if there is such a conflict of interest. Here, although the lawyer is representing codefendants, their interests could easily differ in the apportionment of liability between them. Therefore, the lawyer must obtain the informed written consent of each party to represent them both. Answer option A is incorrect. Under Model Rule 1.7(a)(2), a concurrent conflict of interests exists if there is a risk that the lawyer’s representation of one client may be affected by his responsibilities to the other. Comment 8 explains that the lawyer should consider whether the clients may eventually have a difference in interests and, if so, whether the difference will “materially interfere with the lawyer’s independent professional judgment” in providing legal representation. Model Rule 1.7(b)(4) provides that the lawyer must obtain written informed consent to continue with the representation if there is such a conflict of interest. Here, it is irrelevant that the two defendants did not retain the lawyer together. Even if two parties retain a lawyer jointly, the lawyer must still obtain written informed consent to represent each of them if there is a risk that the lawyer’s representation of one client may be affected by his responsibilities to the other. Answer option C is incorrect. Under Model Rule 1.7(a)(2), a concurrent conflict of interests exists if there is a risk that the lawyer’s representation of one client may be affected by his responsibilities to the other. Comment 8 explains that the lawyer should consider whether the clients may eventually have a difference in interests and, if so, whether the difference will “materially interfere with the lawyer’s independent professional judgment” in providing legal representation. Model Rule 1.7(b)(4) provides that the lawyer must obtain written informed consent to continue with the representation if there is such a conflict of interest. Although representation of criminal codefendants is considered even more problematic and likely to produce a conflict of interest than codefendants in a civil matter, both situations require informed written consent of each client. Here, the defendants’ interests could easily differ in the apportionment of liability between them. Therefore, the lawyer must obtain the informed written consent of each party to represent them both. Answer option D is incorrect. Under Model Rule 1.7(a)(2), a concurrent conflict of interests exists if there is a risk that the lawyer’s representation of one client may be affected by his responsibilities to the other. Comment 8 explains that the lawyer should consider whether the clients may eventually have a difference in interests and, if so, whether the difference will “materially interfere with the lawyer’s independent professional judgment” in providing legal representation. Model Rule 1.7(b)(4) provides that the lawyer must obtain written informed consent to continue with the representation if there is such a conflict of interest. Here, although the lawyer is representing codefendants, their interests could easily differ in the apportionment of liability between them. Therefore, the lawyer must obtain the informed written consent of each party to represent them both.

Answer 165

D All of the above considerations are relevant to the lawyer in determining whether she can ethically represent both passengers concurrently. Answer option D is correct. Rule 1.7(b) of the Model Rules of Professional Conduct provides clear criteria for determining whether a lawyer facing a concurrent conflict of interest may continue with the representation of multiple clients upon the clients’ informed consent and written waiver of the conflict. A lawyer may represent clients despite a concurrent conflict of interest if (1) the lawyer reasonably believes that she can still provide competent and diligent representation to all affected clients despite the conflict of interest; (2) the representation is not prohibited by law; and (3) the representation does not involve clients asserting claims against each other in the same litigation or matter before a tribunal. Here, all of the listed considerations are relevant to the lawyer’s determination of whether she can ethically represent both passengers concurrently in the lawsuit against the taxi driver. The likelihood that the litigation could give rise to a claim by one passenger against the other is directly relevant to the requirement that the lawyer may not represent multiple clients who are asserting claims against each other in the same litigation. The nature and extent of each passenger’s injuries and whether the taxi driver has sufficient assets or insurance coverage to cover any judgment in full are also relevant considerations. If the potential damages exceed the taxi driver’s assets, any settlement for one passenger will necessarily mean fewer available assets to pay damages to the other passenger. Thus, a favorable settlement for one passenger could adversely affect the interests of the other passenger, creating a conflict of interest. Answer option A is incorrect. Rule 1.7(b) of the Model Rules of Professional Conduct provides clear criteria for determining whether a lawyer facing a concurrent conflict of interest may continue with the representation of multiple clients upon the clients’ informed consent and written waiver of the conflict. A lawyer may represent clients despite a concurrent conflict of interest if (1) the lawyer reasonably believes that she can still provide competent and diligent representation to all affected clients despite the conflict of interest; (2) the representation is not prohibited by law; and (3) the representation does not involve clients asserting claims against each other in the same litigation or matter before a tribunal. Here, the likelihood that the litigation could give rise to a claim by one passenger against the other is directly relevant to the requirement that the lawyer may not represent multiple clients who are asserting claims against each other in the same litigation. Answer option B is incorrect. Rule 1.7(b) of the Model Rules of Professional Conduct provides clear criteria for determining whether a lawyer facing a concurrent conflict of interest may continue with the representation of multiple clients upon the clients’ informed consent and written waiver of the conflict. A lawyer may represent clients despite a concurrent conflict of interest if (1) the lawyer reasonably believes that she can still provide competent and diligent representation to all affected clients despite the conflict of interest; (2) the representation is not prohibited by law; and (3) the representation does not involve clients asserting claims against each other in the same litigation or matter before a tribunal. Here, the nature and extent of each passenger’s injuries is a relevant consideration in whether the lawyer can ethically represent both passengers. If the potential damages exceed the taxi driver’s assets, any settlement for one passenger will necessarily mean fewer available assets to pay damages to the other passenger. Thus, a favorable settlement for one passenger could adversely affect the interests of the other passenger, creating a conflict of interest. Answer option C is incorrect. Rule 1.7(b) of the Model Rules of Professional Conduct provides clear criteria for determining whether a lawyer facing a concurrent conflict of interest may continue with the representation of multiple clients upon the clients’ informed consent and written waiver of the conflict. A lawyer may represent clients despite a concurrent conflict of interest if (1) the lawyer reasonably believes that she can still provide competent and diligent representation to all affected clients despite the conflict of interest; (2) the representation is not prohibited by law; and (3) the representation does not involve clients asserting claims against each other in the same litigation or matter before a tribunal. Here, whether the taxi driver has sufficient assets or insurance coverage to cover any judgment in full is a relevant consideration in whether the lawyer can ethically represent both passengers. If the potential damages exceed the taxi driver’s assets, any settlement for one passenger will necessarily mean fewer available assets to pay damages to the other passenger. Thus, a favorable settlement for one passenger could adversely affect the interests of the other passenger, creating a conflict of interest.

Answer 166

A A lawyer’s own economic or business interests should never materially limit a client’s representation, even when the interests are unrelated to the matter at hand. Answer option A is correct. Rule 1.7(a)(2) of the Model Rules of Professional Conduct provides that a lawyer is prohibited from representing a client if the representation involves a concurrent conflict of interest, which includes a significant risk that the representation will be materially limited by the lawyer’s personal interest. Moreover, Comment 10 to Rule 1.7 explains that lawyers are prohibited from agreeing to representation if their own economic and business interests, even those unrelated to the matter at hand, may compromise their loyalty and ability to provide unbiased legal advice. Here, answer option A correctly states the rule. An attorney’s personal economic or business interests, even if unrelated to the attorney’s representation of the client, should not materially limit the attorney’s representation. If such a conflict exists, the lawyer must get the client’s informed written consent and reasonably believe that the lawyer will still be able to provide competent and diligent representation. Answer option B is incorrect. Model Rule 1.7(a)(2) provides that a lawyer is prohibited from representing a client if the representation involves a concurrent conflict of interest, which includes a significant risk that the representation will be materially limited by the lawyer’s personal interest. Moreover, Comment 10 to Rule 1.7 explains that lawyers are prohibited from agreeing to representation if their own economic and business interests, even those unrelated to the matter at hand, may compromise their loyalty and ability to provide unbiased legal advice. This answer option wrongly states that a client does not need to provide informed written consent to waive a conflict of interest based on the lawyer’s personal interest. A client must consent to waive a conflict, whether based on a lawyer’s duty to another client or a lawyer’s personal interests. Answer option C is incorrect. Model Rule 1.7(a)(2) provides that a lawyer is prohibited from representing a client if the representation involves a concurrent conflict of interest, which includes a significant risk that the representation will be materially limited by the lawyer’s personal interest. Moreover, Comment 10 to Rule 1.7 explains that lawyers are prohibited from agreeing to representation if their own economic and business interests, even those unrelated to the matter at hand, may compromise their loyalty and ability to provide unbiased legal advice. This answer option wrongly states that conflicts based on a lawyer’s personal interest are unwaivable. A client can usually consent to waive a conflict, whether based on a lawyer’s duty to another client or a lawyer’s personal interests. Answer option D is incorrect. Model Rule 1.7(a)(2) provides that a lawyer is prohibited from representing a client if the representation involves a concurrent conflict of interest, which includes a significant risk that the representation will be materially limited by the lawyer’s personal interest. Moreover, Comment 10 to Rule 1.7 explains that lawyers are prohibited from agreeing to representation if their own economic and business interests, even those unrelated to the matter at hand, may compromise their loyalty and ability to provide unbiased legal advice. This answer option wrongly states that a lawyer’s personal relationship conflict is ordinarily imputed to the lawyer’s firm. Unlike conflicts based on duties to another client, conflicts based on the lawyer’s personal interests are usually not imputed to other lawyers in the same firm.

Answer 167

D If the lawyer took reasonable steps to limit the information revealed in the consultation, the lawyer is appropriately screened from the case, and notice is provided to the woman. Answer option D is correct. Rule 1.18 of the Model Rules of Professional Conduct prohibits a lawyer from representing a client in the same or a substantially related matter as a prospective client if, in the course of a consultation with the prospective client, the lawyer learns information that is significantly harmful to the prospective client. If the consulting lawyer is practicing in a firm setting, the conflict stemming from the prospective-client consultation is imputed to the members of the lawyer’s firm. However, other members of the firm can continue to represent the existing client if three criteria are met. First, the conflicted lawyer took reasonable steps to limit the information revealed in the consultation to what was necessary to decide whether to represent the prospective client. Second, the conflicted lawyer is screened from the case and receives no part of the fee. And third, the firm must notify the prospective client of the subject involved and the screening process used. Here, the lawyer has a conflict of interest because the firm represents the husband and the lawyer has spoken to the woman, a prospective client, who are adversaries in the same litigation. The firm must decline the woman’s case. However, the firm can continue to represent the husband if the lawyer took reasonable steps to limit the information revealed in the consultation, the lawyer is appropriately screened, and notice is provided to the woman. Answer option A is incorrect. Rule 1.18 of the Model Rules of Professional Conduct prohibits a lawyer from representing a client in the same or a substantially related matter as a prospective client if, in the course of a consultation with the prospective client, the lawyer learns information that is significantly harmful to the prospective client. If the consulting lawyer is practicing in a firm setting, the conflict stemming from the prospective-client consultation is imputed to the members of the lawyer’s firm. However, other members of the firm can continue to represent the existing client if three criteria are met. First, the conflicted lawyer took reasonable steps to limit the information revealed in the consultation to what was necessary to decide whether to represent the prospective client. Second, the conflicted lawyer is screened from the case and receives no part of the fee. And third, the firm must notify the prospective client of the subject involved and the screening process used. Here, although the husband was already a client when the woman consulted with the lawyer, the conflict of interest rules could still result in the firm having to withdraw from representation of the husband due to the conflict created by learning confidential information from the woman. Therefore, the firm cannot continue to represent the husband in all circumstances. The firm can continue to represent the husband if the conflicted lawyer took reasonable steps to limit the information revealed in the consultation, the lawyer is appropriately screened, and notice is provided to the woman. Answer option B is incorrect. Rule 1.18 of the Model Rules of Professional Conduct prohibits a lawyer from representing a client in the same or a substantially related matter as a prospective client if, in the course of a consultation with the prospective client, the lawyer learns information that is significantly harmful to the prospective client. If the consulting lawyer is practicing in a firm setting, the conflict stemming from the prospective-client consultation is imputed to the members of the lawyer’s firm. However, other members of the firm can continue to represent the existing client if three criteria are met. First, the conflicted lawyer took reasonable steps to limit the information revealed in the consultation to what was necessary to decide whether to represent the prospective client. Second, the conflicted lawyer is screened from the case and receives no part of the fee. And third, the firm must notify the prospective client of the subject involved and the screening process used. Here, the lawyer cannot represent the husband because the lawyer learned confidential information from the woman that is significantly harmful to the woman, a prospective client. Although that conflict is imputed to the lawyer’s firm, the firm is not categorically disqualified from continuing to represent the husband. The firm can continue to represent the husband if the conflicted lawyer took reasonable steps to limit the information revealed in the consultation, the lawyer is appropriately screened, and notice is provided to the woman. Answer option C is incorrect. Rule 1.18 of the Model Rules of Professional Conduct prohibits a lawyer from representing a client in the same or a substantially related matter as a prospective client if, in the course of a consultation with the prospective client, the lawyer learns information that is significantly harmful to the prospective client. If the consulting lawyer is practicing in a firm setting, the conflict stemming from the prospective-client consultation is imputed to the members of the lawyer’s firm. However, other members of the firm can continue to represent the existing client if three criteria are met. First, the conflicted lawyer took reasonable steps to limit the information revealed in the consultation to what was necessary to decide whether to represent the prospective client. Second, the conflicted lawyer is screened from the case and receives no part of the fee. And third, the firm must notify the prospective client of the subject involved and the screening process used. Here, the woman and the husband are adversaries in the same case that is being litigated in a tribunal. Therefore, the lawyer, and by extension, the firm, cannot represent both parties. Such representation presents an unwaivable conflict. However, the firm is not representing the woman, because it has declined to accept her case. The firm can therefore continue to represent the husband if the conflicted lawyer took reasonable steps to limit the information revealed in the consultation, the lawyer is appropriately screened, and notice is provided to the woman.

Answer 168

B The firm must implement procedures to ensure that each affected client’s information remains confidential. Answer option B is correct. Rule 1.10(c) of the Model Rules of Professional Conduct (MRPC) provides that an imputed conflict may be waived by the affected client according to the conditions stated in Rule 1.7. Rule 1.7 provides that a client may waive a conflict of interest upon the satisfaction of four criteria: (1) the lawyer must reasonably believe that she can provide competent and diligent representation despite the conflict; (2) the representation may not be prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client in the same litigation or other proceeding before a tribunal; and (4) each of the affected clients must provide a written informed consent to the representation. Although the firm must ensure that client information is kept confidential under other rules, ensuring confidentiality is not a requirement for a client’s waiver of an imputed conflict of interest. The other answer options all state requirements for waiver of an imputed conflict of interests under the MPRC. Answer option A is incorrect. Rule 1.10(c) of the MRPC provides that an imputed conflict may be waived by the affected client according to the conditions stated in Rule 1.7. Rule 1.7 provides that a client may waive a conflict of interest upon the satisfaction of four criteria: (1) the lawyer must reasonably believe that she can provide competent and diligent representation despite the conflict; (2) the representation may not be prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client in the same litigation or other proceeding before a tribunal; and (4) each of the affected clients must provide a written informed consent to the representation. Because one requirement for a waiver of an imputed conflict is that the lawyer must reasonably believe that she can provide competent and diligent representation despite the conflict, this answer option is incorrect. Rather, there is no requirement that a firm must implement procedures to ensure that each affected client’s information remains confidential. Answer option C is incorrect. Rule 1.10(c) of the MRPC provides that an imputed conflict may be waived by the affected client according to the conditions stated in Rule 1.7. Rule 1.7 provides that a client may waive a conflict of interest upon the satisfaction of four criteria: (1) the lawyer must reasonably believe that she can provide competent and diligent representation despite the conflict; (2) the representation may not be prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client in the same litigation or other proceeding before a tribunal; and (4) each of the affected clients must provide a written informed consent to the representation. Because one requirement for a waiver of an imputed conflict is that the representation must not be prohibited by law, this answer option is incorrect. Rather, there is no requirement that a firm must implement procedures to ensure that each affected client’s information remains confidential. Answer option D is incorrect. Rule 1.10(c) of the MRPC provides that an imputed conflict may be waived by the affected client according to the conditions stated in Rule 1.7. Rule 1.7 provides that a client may waive a conflict of interest upon the satisfaction of four criteria: (1) the lawyer must reasonably believe that she can provide competent and diligent representation despite the conflict; (2) the representation may not be prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client in the same litigation or other proceeding before a tribunal; and (4) each of the affected clients must provide a written informed consent to the representation. Because one requirement for a waiver of an imputed conflict is that the representation does not involve the assertion of a claim by one client against another in the same litigation, this answer option is incorrect. Rather, there is no requirement that a firm must implement procedures to ensure that each affected client’s information remains confidential.

Answer 169

B Yes, because the cases are not the same or substantially related. Answer option B is correct. Under Model Rule of Professional Conduct 1.9(a), a lawyer who has formerly represented a client cannot later represent a new client with materially adverse interests in the same or substantially related matter. A matter is the same or substantially related if it involves the same transaction or legal dispute as the former representation, or if the lawyer would rely on confidential information gained from the previous client to help the new client. Such a conflict can be waived by the previous client. Here, the business owner is a former client. The potential client is now adverse to the business owner. However, the potential client’s new suit against the business owner is not substantially related to the lawyer’s previous case with the business owner. The subjects of the two lawsuits are unrelated, and the facts indicate that no information the lawyer gained by representing the business owner in a breach-of-contract case will be relevant to adjudicating a property-line dispute between neighbors. Therefore, the lawyer can take the potential client’s case without obtaining the business owner’s informed written consent. Answer option A is incorrect. Under Model Rule 1.9(a), a lawyer who has formerly represented a client cannot later represent a new client with materially adverse interests in the same or substantially related matter. A matter is the same or substantially related if it involves the same transaction or legal dispute as the former representation, or if the lawyer would rely on confidential information gained from the previous client to help the new client. Such a conflict can be waived by the previous client. A conflict stays with the lawyer, even if the lawyer changes firms. Here, the fact that the lawyer has changed firms is irrelevant. No conflict exists even if the lawyer were still at the same firm, because the potential client’s new suit against the business owner is not substantially related to the lawyer’s previous case with the business owner. Conversely, if the lawyer did have a conflict of interest, it would exist even at the new firm. Answer option C is incorrect. Under Model Rule 1.9(a), a lawyer who has formerly represented a client cannot later represent a new client with materially adverse interests in the same or substantially related matter. A matter is the same or substantially related if it involves the same transaction or legal dispute as the former representation, or if the lawyer would rely on confidential information gained from the previous client to help the new client. Such a conflict can be waived by the previous client. A conflict stays with the lawyer, even if the lawyer changes firms. This answer option correctly states the rule that a lawyer’s conflict generally does not vanish by virtue of the lawyer changing firms. Here, however, no conflict exists to begin with, because the potential client’s new suit against the business owner is not substantially related to the lawyer’s previous case with the business owner. Answer option D is incorrect. Under Model Rule 1.9(a), a lawyer who has formerly represented a client cannot later represent a new client with materially adverse interests in the same or substantially related matter. A matter is the same or substantially related if it involves the same transaction or legal dispute as the former representation, or if the lawyer would rely on confidential information gained from the previous client to help the new client. Such a conflict can be waived by the previous client. The model rules do not prevent lawyers from taking on cases that might harm a former client. Rather, a conflict exists only if the matter is materially adverse and the same or substantially related to the lawyer’s representation of the former client. Here, the second prong is not satisfied, because the potential client’s new suit against the business owner is not substantially related to the lawyer’s previous case with the business owner. The subjects of the two lawsuits are unrelated, and the facts indicate that no information the lawyer gained by representing the business owner in a breach-of-contract case will be relevant to adjudicating a property-line dispute between neighbors.

Answer 170

C Disclosure would not adversely affect the former client’s interests. Answer option C is correct. Even after the attorney-client relationship has ended, a lawyer is still generally obligated to protect a former client’s information. A lawyer cannot reveal information relating to the representation of a client or use information relating to a former client’s representation to the former client’s disadvantage, unless the information has become generally known or the rules otherwise permit it. Here, the fact that disclosure would not adversely affect the former client’s interests would not justify disclosure of information under the rules. The duty of confidentiality requires that lawyers not disclose client information, even if disclosure would have no adverse impact on the client’s interests. Answer option A is incorrect. Even after the attorney-client relationship has ended, a lawyer is still generally obligated to protect a former client’s information. A lawyer cannot use information relating to a former client’s representation to the former client’s disadvantage, unless the information has become generally known or the rules otherwise permit it. A client can waive the confidentiality requirement and give informed written consent for a lawyer to disclose information related to the representation. Therefore, this answer option states a basis that would permit disclosure. Answer option B is incorrect. Even after the attorney-client relationship has ended, a lawyer is still generally obligated to protect a former client’s information. A lawyer cannot use information relating to a former client’s representation to the former client’s disadvantage, unless the information has become generally known or the rules otherwise permit it. The Model Rules of Professional Conduct permit a lawyer to use information related to the representation of a former client to the former client’s disadvantage if the information has become generally known. Therefore, this answer option states a basis that would permit use of client information. Answer option D is incorrect. Even after the attorney-client relationship has ended, a lawyer is still generally obligated to protect a former client’s information. A lawyer cannot use information relating to a former client’s representation to the former client’s disadvantage, unless the information has become generally known or the rules otherwise permit it. The Model Rules require an attorney to disclose client information if required by a court order. Therefore, this answer option states a basis that would permit disclosure.

Answer 171

C The waiver is permissible and one of several ways in which a lawyer can consult with a prospective client without worrying that the consultation will disqualify the lawyer in other cases. Answer option C is correct. Conflicts of interest can arise from both existing and prospective clients. Lawyers cannot use or reveal information learned from a prospective client. If a lawyer learns significantly harmful information from a prospective client, the lawyer cannot represent someone who is materially adverse to the prospective client in the same or a substantially related matter. However, there are several ways to avoid conflicts and disqualification. First, a lawyer can obtain informed written consent from a prospective client and a current client to represent both despite the conflict. Second, different lawyers in the same firm can represent the current and prospective clients if proper notification and screening measures are employed. Third, a prospective client may give advance consent, permitting the lawyer to represent adverse clients and use the prospective client’s information for any purpose. Here, the lawyer has asked the prospective client to sign an advance waiver. Such an advance waiver is a permissible way for the lawyer to consult with the prospective client without concern that information provided in the consultation will create a conflict with another existing or prospective client. Answer option A is incorrect. Conflicts of interest can arise from both existing and prospective clients. Lawyers cannot use or reveal information learned from a prospective client. If a lawyer learns significantly harmful information from a prospective client, the lawyer cannot represent someone who is materially adverse to the prospective client in the same or a substantially related matter. However, there are several ways to avoid conflicts and disqualification. First, a lawyer can obtain informed written consent from a prospective client and a current client to represent both despite the conflict. Second, different lawyers in the same firm can represent the current and prospective clients if proper notification and screening measures are employed. Third, a prospective client may give advance consent, permitting the lawyer to represent adverse clients and use the prospective client’s information for any purpose. Here, the lawyer’s proposed waiver is permissible. Nothing in the Model Rules of Professional Conduct prevents a prospective client from giving advanced consent to a waiver that permits the lawyer to represent adverse clients and use the prospective client’s information for any purpose. Answer option B is incorrect. Conflicts of interest can arise from both existing and prospective clients. Lawyers cannot use or reveal information learned from a prospective client. If a lawyer learns significantly harmful information from a prospective client, the lawyer cannot represent someone who is materially adverse to the prospective client in the same or a substantially related matter. However, there are several ways to avoid conflicts and disqualification. First, a lawyer can obtain informed written consent from a prospective client and a current client to represent both despite the conflict. Second, different lawyers in the same firm can represent the current and prospective clients if proper notification and screening measures are employed. Third, a prospective client may give advance consent, permitting the lawyer to represent adverse clients and use the prospective client’s information for any purpose. Here, the lawyer’s proposed waiver is not unnecessary, because a conflict could arise from information provided by the prospective client during the consultation. The proposed waiver is a permissible way for the lawyer to consult with the prospective client without concern that information provided in the consultation will create a conflict with another existing or prospective client. Answer option D is incorrect. Conflicts of interest can arise from both existing and prospective clients. Lawyers cannot use or reveal information learned from a prospective client. If a lawyer learns significantly harmful information from a prospective client, the lawyer cannot represent someone who is materially adverse to the prospective client in the same or a substantially related matter. However, there are several ways to avoid conflicts and disqualification. First, a lawyer can obtain informed written consent from a prospective client and a current client to represent both despite the conflict. Second, different lawyers in the same firm can represent the current and prospective clients if proper notification and screening measures are employed. Third, a prospective client may give advance consent, permitting the lawyer to represent adverse clients and use the prospective client’s information for any purpose. Here, although the lawyer’s proposed waiver is permissible, it is not the only way to avoid issues with conflicts of interest. The lawyer can also obtain consent to a specific conflict of interest, or have different lawyers at the same firm represent the current and prospective client by using proper notification and screening measures.

Answer 172

A The firm and the lawyer can represent the start-up without obtaining waiver from or providing notice to the manufacturer. Answer option A is correct. Under Rule 1.10 of the Model Rules of Professional Conduct, the general presumption is that while lawyers are associated in a firm, none of them may knowingly represent a client if any one of them alone would be precluded from representing the client under applicable conflict-of-interest rules. In short, any individual lawyer’s conflict of interest is imputed to the entire firm. Here, the lawyer has no conflict of interest, because he never personally represented the manufacturer and had no confidential information about the manufacturer. Although the boutique firm’s representation of the manufacturer is imputed to the lawyer while the lawyer works for the firm, upon leaving the firm, such imputation ends, and the lawyer has no duties to the manufacturer. Therefore, the lawyer and the lawyer’s new firm may represent the start-up in litigation against the manufacturer with no need for screening, waiver, or notification. Answer option B is incorrect. Under Rule 1.10 of the Model Rules of Professional Conduct, the general presumption is that while lawyers are associated in a firm, none of them may knowingly represent a client if any one of them alone would be precluded from representing the client under applicable conflict-of-interest rules. In short, any individual lawyer’s conflict of interest is imputed to the entire firm. Here, the lawyer has no conflict of interest, because he never personally represented the manufacturer and had no confidential information about the manufacturer. Although the boutique firm’s representation of the manufacturer is imputed to the lawyer while the lawyer works for the firm, upon leaving the firm, such imputation ends, and the lawyer has no duties to the manufacturer. Therefore, the lawyer and the lawyer’s new firm may represent the start-up in litigation against the manufacturer with no need for screening, waiver, or notification. Answer option C is incorrect. Under Rule 1.10 of the Model Rules of Professional Conduct, the general presumption is that while lawyers are associated in a firm, none of them may knowingly represent a client if any one of them alone would be precluded from representing the client under applicable conflict-of-interest rules. In short, any individual lawyer’s conflict of interest is imputed to the entire firm. Here, the lawyer has no conflict of interest, because he never personally represented the manufacturer and had no confidential information about the manufacturer. Although the boutique firm’s representation of the manufacturer is imputed to the lawyer while the lawyer works for the firm, upon leaving the firm, such imputation ends, and the lawyer has no duties to the manufacturer. Therefore, the lawyer and the lawyer’s new firm may represent the start-up in litigation against the manufacturer with no need for screening, waiver, or notification. Answer option D is incorrect. Under Rule 1.10 of the Model Rules of Professional Conduct, the general presumption is that while lawyers are associated in a firm, none of them may knowingly represent a client if any one of them alone would be precluded from representing the client under applicable conflict-of-interest rules. In short, any individual lawyer’s conflict of interest is imputed to the entire firm. Here, the lawyer has no conflict of interest, because he never personally represented the manufacturer and had no confidential information about the manufacturer. Although the boutique firm’s representation of the manufacturer is imputed to the lawyer while the lawyer works for the firm, upon leaving the firm, such imputation ends, and the lawyer has no duties to the manufacturer. Therefore, the lawyer and the lawyer’s new firm may represent the start-up in litigation against the manufacturer with no need for screening, waiver, or notification.

Answer 173

D No, because even if both players waive the conflict of interest, the lawyer must still reasonably believe that competent and diligent representation of both players is possible. Answer option D is correct. Model Rule of Professional Conduct 1.7(b) permits a lawyer to concurrently represent multiple clients despite their conflicting interests if (1) the lawyer reasonably believes he can provide competent and diligent representation to all affected clients despite the conflict; (2) the representation is not prohibited by law; (3) the representation does not involve clients asserting claims against each other in the same litigation or matter before a tribunal; and (4) all clients provide informed consent, in writing. Here, the two soccer players are competing against each other for a share of the same small pool of salary funds. Any salary that the lawyer negotiates for one player will reduce the pool of salary funds available to the other player. Representing both players therefore poses a direct, concurrent conflict of interest. Although the players are willing to consent and waive any conflict of interest, this represents just one factor that must be true in order for a lawyer to ethically undertake concurrent representation of multiple clients despite a conflict. Here, the conflict is likely not capable of permitting consent, because the lawyer cannot reasonably conclude that diligent and competent representation of both soccer players is possible. Pursuing the most advantageous renewal terms for one soccer player will ultimately act to the detriment of the other soccer player. Answer option A is incorrect. Model Rule of Professional Conduct 1.7(b) permits a lawyer to concurrently represent multiple clients despite their conflicting interests if (1) the lawyer reasonably believes he can provide competent and diligent representation to all affected clients despite the conflict; (2) the representation is not prohibited by law; (3) the representation does not involve clients asserting claims against each other in the same litigation or matter before a tribunal; and (4) all clients provide informed consent, in writing. Here, although the players are not asserting claims against each other in litigation, this does not necessarily mean that the conflict is capable of permitting consent. The lawyer must still be able to provide competent and diligent representation to all affected clients despite the conflict. Therefore, the agreement by the players to waive the conflict is not sufficient by itself to permit the lawyer to represent both players. Answer option B is incorrect. Model Rule of Professional Conduct 1.7(b) permits a lawyer to concurrently represent multiple clients despite their conflicting interests if (1) the lawyer reasonably believes he can provide competent and diligent representation to all affected clients despite the conflict; (2) the representation is not prohibited by law; (3) the representation does not involve clients asserting claims against each other in the same litigation or matter before a tribunal; and (4) all clients provide informed consent, in writing. This answer option misstates the nature of the conflict between the players. Two clients are only economically adverse if they are marketplace competitors. Such a situation presents no conflict. Therefore, a lawyer can represent two clients on unrelated matters even if the clients are in the same industry, such as two restaurants located in the same city. Here, the players’ interests are legally adverse, not just economically adverse. The two soccer players are competing against each other for a share of the same small pool of salary funds. Any salary that the lawyer negotiates for one player will reduce the pool of salary funds available to the other player. Representing both players therefore poses a direct, concurrent conflict of interest. The lawyer must still be able to provide competent and diligent representation to all affected clients despite the conflict. Therefore, the agreement by the players to waive the conflict is not sufficient by itself to permit the lawyer to represent both players. Answer option C is incorrect. Model Rule of Professional Conduct 1.7(b) permits a lawyer to concurrently represent multiple clients despite their conflicting interests if (1) the lawyer reasonably believes he can provide competent and diligent representation to all affected clients despite the conflict; (2) the representation is not prohibited by law; (3) the representation does not involve clients asserting claims against each other in the same litigation or matter before a tribunal; and (4) all clients provide informed consent, in writing. This answer option misstates the rule. Clients can waive a conflict even in related matters. Here, however, the conflict is likely not capable of permitting consent, because the lawyer cannot reasonably conclude that diligent and competent representation of both soccer players is possible. Pursuing the most advantageous renewal terms for one soccer player will ultimately act to the detriment of the other soccer player.

Answer 174

B Yes, because the lawyer’s partner learned significantly harmful information about the school principal in a related matter. Answer option B is correct. Rule 1.18 of the Model Rules of Professional Conduct provides that a lawyer may be disqualified from representing a current client if a materially adverse prospective client in a related matter reveals significantly harmful information about the prospective client. This disqualification rule is imputed to other lawyers as provided in Rule 1.10, but imputation may be avoided if the lawyer obtains written informed consent from both the current and prospective clients. Here, the school principal is a prospective client. The principal admitted to sexual conduct with the teacher, information that would be significantly harmful to the principal in the teacher’s harassment suit against him. Therefore, the partner cannot represent the teacher, and the partner’s conflict is imputed to the lawyer as another member of the firm. Answer option A is incorrect. Rule 1.18 of the Model Rules of Professional Conduct provides that a lawyer may be disqualified from representing a current client if a materially adverse prospective client in a related matter reveals significantly harmful information about the prospective client. This disqualification rule is imputed to other lawyers as provided in Rule 1.10, but imputation may be avoided if the lawyer obtains written informed consent from both the current and prospective clients. The mere occurrence of a consultation with an adverse party does not prevent a lawyer from continuing to represent a client who is directly adverse to the prospective client. Rather, the lawyer is disqualified because the partner learned significantly harmful information from the school principal. Answer option C is incorrect. Rule 1.18 of the Model Rules of Professional Conduct provides that a lawyer may be disqualified from representing a current client if a materially adverse prospective client in a related matter reveals significantly harmful information about the prospective client. This disqualification rule is imputed to other lawyers as provided in Rule 1.10, but imputation may be avoided if the lawyer obtains written informed consent from both the current and prospective clients. One way to prevent conflicts under Rule 1.18 is to screen off the disqualified lawyer. However, screening is permissible only if the consulting lawyer took reasonable steps to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client. Here, the fact pattern specifies that the partner took no steps to limit the scope of the consultation with the school principal. Therefore, screening is not available as a remedy, and the lawyer is disqualified from representing the teacher. Answer option D is incorrect. Rule 1.18 of the Model Rules of Professional Conduct provides that a lawyer may be disqualified from representing a current client if a materially adverse prospective client in a related matter reveals significantly harmful information about the prospective client. This disqualification rule is imputed to other lawyers as provided in Rule 1.10, but imputation may be avoided if the lawyer obtains written informed consent from both the current and prospective clients. Prospective-client conflicts are imputed to the entire firm. Therefore, because the partner has a conflict due to learning significantly harmful information from the school principal, the lawyer, as another member of the firm, is also disqualified from representing the teacher.

Answer 175

D The lawyer may use or reveal a former client’s information that has become generally known, even if the use or revelation of that information disadvantages the former client. Answer option D is correct. Lawyers continue to owe duties to former clients. Rule 1.9(c) of the Model Rules of Professional Conduct prohibits a lawyer from using information relating to the representation to the disadvantage of the former clients, unless the information has become generally known. If information has become generally known, a lawyer can use or reveal the information, even if the use or revelation of that information disadvantages the former client. Answer option A is incorrect. Lawyers continue to owe duties to former clients. Rule 1.9(c) of the Model Rules of Professional Conduct prohibits a lawyer from using information relating to the representation to the disadvantage of the former clients, unless the information has become generally known. This answer option incorrectly states that a lawyer cannot use any information related to the representation of a former client in any way. If information has become generally known, a lawyer can use or reveal the information, even if the use or revelation of that information disadvantages the former client. Answer option B is incorrect. Lawyers continue to owe duties to former clients. Rule 1.9(c) of the Model Rules of Professional Conduct prohibits a lawyer from using information relating to the representation to the disadvantage of the former clients, unless the information has become generally known. This answer option incorrectly states that a lawyer cannot use any information related to the representation of a former client to the former client’s disadvantage, even if the information has become generally known. If information has become generally known, a lawyer can use or reveal the information, even if the use or revelation of that information disadvantages the former client. Answer option C is incorrect. Lawyers continue to owe duties to former clients. Rule 1.9(c) of the Model Rules of Professional Conduct prohibits a lawyer from using information relating to the representation to the disadvantage of the former clients, unless the information has become generally known. This answer option incorrectly states that a lawyer can use or reveal information related to the representation of a former client that has become generally known only if the use or revelation of this information does not disadvantage the former client. If information has become generally known, a lawyer can use or reveal the information, even if the use or revelation of that information disadvantages the former client.

Answer 176

B Yes, because the lawyer is materially limited in his representation of each neighbor by the other neighbor’s motivations and goals. Answer option B is correct. Rule 1.7(a) of the Model Rules of Professional Conduct provides that a concurrent conflict of interest exists if there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to another client. A conflict can arise even if the representation does not at first present a conflict. Here, the two neighbors are represented by the same lawyer in the same lawsuit but have incompatible motivations and goals. There is a significant risk that the lawyer will be materially limited in his ability to help one neighbor without compromising the goals of the other. Answer option A is incorrect. Rule 1.7(a) of the Model Rules of Professional Conduct provides that a concurrent conflict of interest exists if there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to another client. A conflict can arise even if the representation does not at first present a conflict. Here, although the situation presents a conflict, it does not present an unwaivable conflict. The neighbors can continue to be represented by the same lawyer if they waive any such conflict. Answer option C is incorrect. Rule 1.7(a) of the Model Rules of Professional Conduct provides that a concurrent conflict of interest exists if there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to another client. A conflict can arise even if the representation does not at first present a conflict. Here, the fact that the neighbors are suing the same defendant does not necessarily mean that no conflict exists. Parties on the same side of a lawsuit, such as coplaintiffs or codefendants, can still present a conflict if they have different goals or motivations. The two neighbors are represented by the same lawyer in the same lawsuit, but they have incompatible motivations and goals. There is a significant risk that the lawyer will be materially limited in his ability to help one neighbor without compromising the goals of the other. Answer option D is incorrect. Rule 1.7(a) of the Model Rules of Professional Conduct provides that a concurrent conflict of interest exists if there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to another client. A conflict can arise even if the representation does not at first present a conflict. Here, the fact that the neighbors are making the same legal claim does not mean that no conflict exists. Parties on the same side of a lawsuit, such as coplaintiffs or codefendants, can still present a conflict if they have different goals or motivations. The two neighbors are represented by the same lawyer in the same lawsuit, but they have incompatible motivations and goals. There is a significant risk that the lawyer will be materially limited in his ability to help one neighbor without compromising the goals of the other.

Answer 177

A The lawyer cannot handle the matter competently without associating with another, more experienced lawyer. Answer option A is correct. If a lawyer is not competent to handle a matter, he must reject the appointment. However, if the lawyer, without undue expense or burden to the client, can become educated on the applicable law by associating with a more experienced attorney, he does not have good cause to decline the court appointment. Model Rule 6.2 provides examples of when a lawyer would have good cause to decline a court appointment. A lawyer has good cause when, as in answer option B, representing the client is likely to result in a violation of the Rules of Professional Conduct or other law. A lawyer also has good cause when, as in answer option C, representing the client would impose an unreasonable financial burden on the lawyer. Finally, good cause exists where, as in answer option D, the client or cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

Answer 178

C No, because the lawyer learned that information from his consultation with the small business owner as a prospective client. Answer option C is correct. Model Rule 1.18(a) defines a prospective client as one who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter. Regardless of whether a relationship ultimately forms, a lawyer speaking with a prospective client “shall not use or reveal information learned in the consultation . . . .” See Model Rule 1.18(b). The small business owner is a prospective client, because she discussed the possibility of forming a relationship with the lawyer about representing her in the rent dispute. Therefore, even though the small business owner never formed a relationship with the lawyer, the lawyer is still obligated to keep information he learned during the consultation confidential.Answer options A and B are incorrect. Even though the lawyer did not enter into a relationship with the small business owner, he is still obligated to maintain the confidentiality of information he learned during his initial consultation. Answer option D is incorrect. The small business owner is not a client by unintentional formation. The lawyer promptly informed her that he could not represent her. During the time that the lawyer was investigating his possible representation, the small business owner did not rely on any representation about a possible relationship to her detriment.

Answer 179

C No, because one unsolicited email cannot form a client-lawyer relationship. Answer option C is correct. If a lawyer does not clearly decline a request for legal services, the lawyer may still be deemed to represent a client if the lawyer knows, or should have known, that the client reasonably relied on the lawyer to provide the services. Restatement (Third) of the Law Governing Lawyers § 14(1)(b). Here, an individual emailed the lawyer seeking representation in upcoming proceedings before the INS. The email clearly expressed the individual’s intention to form a lawyer-client relationship. However, the lawyer did not respond to the individual’s email to clearly decline the request for legal services. Several facts make it unlikely that the lawyer would still be deemed to represent the individual. First, the email was unsolicited. While the lawyer asked for topic suggestions for his podcast, he did not invite potential clients to contact him. Second, the individual sent just one email. The individual did not communicate anything in that single email that would have indicated to the lawyer that the individual was relying on the lawyer to provide the services. Any reliance by the individual, based on a single unsolicited email, sent to a lawyer the individual did not know, would arguably be unreasonable. For these reasons, the individual and the lawyer are not in a client-lawyer relationship. See id. illus. 3. Answer options A and B are necessarily incorrect for this same reason. Answer option D is incorrect because the scope of the podcast is not relevant to whether a relationship formed. Let us know what you think a

Answer 180

C No, because the attorney could partner with the other lawyer in his firm with death-penalty experience to provide competent representation. Answer option C is correct. Model Rule 6.2 permits a lawyer to decline an appointment when doing so would violate the Model Rules. For example, a lawyer would violate the Model Rules by accepting a court appointment if the lawyer cannot provide competent representation as required by Model Rule 1.1. Therefore, if a lawyer is not competent to handle a matter, he must reject the appointment. However, if the lawyer, without undue expense or burden to the client, can become educated on the applicable law by associating with a more experienced attorney, he does not have good cause to decline the court appointment. Here, even though the attorney lacked experience with death-penalty cases, he could partner with the other lawyer in his firm that had such experience and thereby provide competent representation. Answer option B is necessarily incorrect for the same reason.Answer option A is incorrect. Model Rule 6.2 states that a lawyer has good cause for declining an appointment when the representation would impose an unreasonable financial burden on the lawyer. The comment to Model Rule 6.2 suggests that financial sacrifice must be “so great as to be unjust.” Here, the lawyer’s practice is currently successful and can cover the anticipated forensic expert costs. These facts suggest the financial burden of the representation, while significant, is not so great as to be unjust. Finally, answer option D is incorrect. Model Rule 6.2 provides that a lawyer may decline a court appointment for good cause, which includes, but is not limited to, when accepting the appointment will result in a conflict of interest.

Answer 181

B The lawyer must abide by the client’s decision to accept a settlement offer. Answer option B is correct. Model Rule 1.2(a) requires a lawyer in civil matters to follow the client’s decision about whether to settle. Answer options A, C, and D are incorrect. Each of those answer options lists a means by which a client’s objectives might be pursued. Model Rule 1.4(a)(2) requires a lawyer to consult with a client regarding the means by which the client’s objectives might be accomplished. While the lawyer should communicate openly with a client about the issues in answer options A, C, and D, the Model Rules do not require her to defer to the client’s decisions on these subjects. For example, a lawyer’s obligation to refrain from filing frivolous claims in Model Rule 3.1 will generally control over the client’s decision to file a lawsuit in answer option D.

Answer 182

D Whether to engage a forensic expert. Answer option D is correct. A lawyer need not defer to a criminal defendant’s decision about whether to employ a forensic expert. Model Rule 1.2(a) requires a lawyer representing a criminal defendant to abide by the client’s decisions on the matters listed in answer options A, B, C, and E.

Answer 183

A Yes, because the limit is reasonable and the lawyer’s explanation has enabled the medical device company to provide informed consent on the limitation. Answer option A is correct. Model Rule 1.2(c) permits a lawyer to limit the scope of his representation if the limitation is reasonable under the circumstances and the client gives informed consent. Here, the lawyer does not have any experience with the regulatory issues associated with the medical device company’s inventions. They are distinct legal issues that the lawyer does not feel he can handle competently, as required under Model Rule 1.1. The lawyer has also given the medical device company the information it needs to make an informed decision about the scope of the representation. Therefore, if the company consents, the lawyer may limit the scope of his representation to exclude the regulatory issues. Thus, the lawyer’s proposed limitation on the scope of his representation is reasonable under the circumstances. Answer options C and D are necessarily incorrect for this reason. Answer option B is incorrect. Model Rule 1.2(c) does not permit a lawyer to unilaterally limit the scope of his representation. He may only do so with the client’s informed consent.

Answer 184

C The lawyer must inform the injured motorist of the settlement offer, the lawyer’s opinion of the motorist’s prospects at trial, and his deposition plan for experts and fact witnesses. Answer option C is correct. Model Rule 1.4(a)(1) requires a lawyer to promptly inform a client of any decision, such as whether to settle a matter, requiring the client’s informed consent. The comments to Rule 1.4 state that “a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer.” Moreover, Model Rule 1.2(a) requires a lawyer always to defer to a client’s decision about whether to settle a matter. The motorist has not specifically authorized the lawyer to accept or reject a settlement offer. Nor has the motorist specifically commented on whether a settlement of $750,000 would be acceptable. Therefore, the lawyer must tell the motorist about the settlement offer. Answer option A is necessarily incorrect for the same reasons.The lawyer should also inform the motorist about his discovery plans for deposing experts and fact witnesses. Model Rule 1.4(a)(2) requires a lawyer to reasonably consult with the client about the means by which the client’s objectives are to be accomplished. The lawyer should update the injured motorist on his plans to retain an expert and depose various witnesses, as these are all means by which the motorist’s objective of obtaining an award of damages or a settlement in an amount adequate to cover his medical expenses will be accomplished. Answer option B, which omits the discovery plan, is necessarily incorrect for the same reason.Finally, the lawyer should convey not only the settlement offer to the motorist, but also the lawyer’s views on the settlement and the likelihood of obtaining greater damages from a jury verdict. The lawyer’s views constitute information that the motorist needs to make an informed decision. Model Rule 1.4(b) requires the lawyer to explain a matter to the extent necessary to permit the client to make an informed decision about the representation. Answer option D, which omits the lawyer’s opinion on the settlement, is necessarily incorrect for the same reason.

Answer 185

B In the course of a civil matter, any time except when agreeing to settle or when a material change in circumstances arises. Answer option B is correct. Under Model Rule 1.2(a), a lawyer must consult with a client about her goals for the representation, and then the lawyer “may take such action as is impliedly authorized” to reach those goals. Comment 3 to Rule 1.2(a) suggests that at the beginning of the relationship, the client may authorize the lawyer to use her professional judgment to act “on the client’s behalf without further consultation.” This gives a lawyer the freedom to act within the scope of the client’s goals, without seeking approval for every decision. The exception in civil matters is when settling a case. Model Rule 1.2(a) requires a lawyer to have specific authorization from the client to settle a civil matter. Answer options A and C are incorrect because each of these options describes an action that would require the lawyer to have specific authority from her client under Model Rule 1.2(a). Answer option D is also incorrect as overbroad. A criminal attorney representing her client at a trial may frequently rely on implied authorization from the client. However, Model Rule 1.2(a) requires specific authorization to act when entering a plea or when accepting a settlement offer, both of which may occur during the course of a trial.

Answer 186

C Any time the client’s capacity to make adequately considered decisions in connection with a representation is diminished and the lawyer reasonably believes that the client is at risk of substantial physical, financial, or other harm. nswer option C is correct. Model Rule 1.14(b) permits a lawyer to take protective action on his client’s behalf when the client has diminished capacity and the lawyer reasonably believes that the client is at risk of substantial physical, financial, or other harm. Answer options A and B are incorrect because they omit the requirement that the client be at risk of substantial physical, financial, or other harm. Answer option D is incorrect because it states that the client must be at risk of harm, without acknowledging that the harm that is risked must be substantial.

Answer 187

A The lawyer need not take any additional steps, but should try to maintain a reasonable lawyer-client relationship. Answer option A is correct. Under Model Rule 1.14, when a client, due to age, mental impairment, or some other issue, exhibits diminished capacity to make informed decisions about the legal representation, the lawyer should take efforts to maintain a reasonably normal relationship. Here, the client’s forgetfulness and difficulty retaining information suggests that he may have diminished capacity. However, after taking time to repeat certain information, the lawyer was confident that his client was able to make an informed decision about the decisions to the estate plan. These additional steps to ensure clear communication and informed consent are part of maintaining a reasonable lawyer-client relationship if a lawyer suspects that a client may be starting to exhibit signs of dementia or Alzheimer's disease. The lawyer should take efforts to maintain a reasonably normal relationship with the client. This includes continuing to communicate and consult with the client as prescribed under Model Rule 1.4. Answer options B, C, and D are incorrect. Under Model Rule 1.14(b), calling a physician, a family member, or seeking to appoint a guardian ad litem might be appropriate if the client were exhibiting diminished capacity and was at risk of substantial physical, financial, or other harm. Here, while the client may be exhibiting some early signs of diminished capacity, the lawyer is confident that the client is capable of informed consent if additional steps are taken, such as repeating information. The facts do not indicate that the client is at risk of substantial physical, financial, or other harm. Rather, the facts indicate that the client has a substantial safety net of friends and family, and otherwise appears in good health. The lawyer should continue to monitor the situation and continually evaluate whether the client has sufficient capacity to provide informed consent in each particular transaction. To the extent possible, the lawyer should allow the client to continue to make decisions and manage affairs as any client would.

Answer 188

B The lawyer should refuse to file the tax return with the business owner’s deductions and, if necessary, withdraw from the representation. Answer option B is correct. Model Rule 1.2(d) forbids a lawyer from assisting a client in conduct the lawyer knows is criminal or fraudulent. If a client insists that a lawyer provide counsel or assistance to carry out such conduct, a lawyer has good grounds under Model Rule 1.16(b) to withdraw from the representation. Here, the small business owner’s desired deductions are not supported by law and, if claimed, would constitute tax fraud. Therefore, the lawyer should refuse to file the tax return with the desired deductions. If the business owner insists, the lawyer may withdraw from the representation under Model Rule 1.16(b). Answer option D is necessarily incorrect for the same reason. Answer option A is incorrect because Model Rule 1.2(d) permits a lawyer to discuss the consequences of a proposed illegal course of conduct with his client. Therefore when the lawyer explained that the business owner could not make the desired deductions, and that doing so would result in penalties for tax fraud, he did not violate the Model Rules. Answer option C is incorrect. A lawyer is required to pursue all nonfrivolous claims on his client’s behalf, but the deductions the business owner wants to take are frivolous because they are not supported by existing law.

Answer 189

H The relative expense of support-staff labor and office equipment in the locality. Answer option H is correct. Model Rule 1.5(a) does not name the relative expense of support-staff labor and office equipment as a factor to consider in evaluating whether a lawyer’s fees are reasonable. Answer options A, B, C, D, E, F, G, and I are all incorrect because they list factors enumerated in Model Rule 1.5(a).

Answer 190

E A contingent-fee agreement between a lawyer and a plaintiff in a products liability action. Answer option E is correct. Model Rule 1.5(c) requires that contingent-fee arrangements be in a writing signed by the client. Model Rule 1.5(b) states that fixed-fee or hourly fee arrangements, such as those in answer options A, B, C, and D, should “preferably” be in writing, but does not require them to be in writing.

Answer 191

D No, because the rules forbid contingent-fee arrangements that hinge upon the amount of the property settlement obtained in divorce proceedings. Answer option D is correct. Model Rule 1.5(d)(1) forbids a lawyer from entering into a contingent-fee arrangement for a domestic relations matter, where the fee depends on the securing of a divorce or the amount of alimony, support, or property settlement. Answer options A, B, and C are necessarily incorrect for this reason. Under Model Rule 1.5(c), the writing signed by the client must specify how the fee will be calculated, including any agreed-upon percentage of the award to be retained by the attorney in the event of settlement, trial, or appeal. The writing should also specify litigation and other expenses to be deducted from the recovery and whether such expenses are to be deducted before or after the contingent fee is calculated. Finally, the writing must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.

Answer 192

C The lawyer needs written authorization to share fees with his law school friend, but not his partner. Answer option C is correct. Model Rule 1.5(e)(2) requires written authorization from the client when lawyers in different firms share fees. The client must sign a writing that specifies how the fees will be shared, including the percentages each lawyer will receive. The Model Rules do not address fee sharing within a firm. Lawyers in the same firm can devise their own fee-sharing arrangements without written authorization from a client. In this case, therefore, the lawyer requires written authorization to share fees with his friend from law school at a different firm. The lawyer does not need written authorization to share fees with a partner at his own firm. Answer options A, B, and D are necessarily incorrect for these reasons.

Answer 193

C No, because a client’s informed consent is required to settle a civil matter. Answer option C is correct. Model Rule of Professional Conduct 1.4(a)(1) requires that a lawyer promptly inform a client of any decision or circumstance to which the client’s informed consent is required. Here, the lawyer received a settlement offer from opposing counsel. A lawyer may not settle a matter without the client’s consent. See Rule 1.2(a). Settlement is a matter upon which the employee’s informed consent is required. Therefore, the lawyer’s prompt communication of the $500,000 offer is required here. See Rule 1.0(e), 1.4(a)(1). The lawyer’s failure to communicate the offer did not comply with the Model Rules of Professional Conduct. Moreover, the lawyer’s settlement of the case without consent from the employee also violated Rule 1.2(a). Answer options A and B are incorrect, because the lawyer’s knowledge that the settlement was advantageous or that the terminated employee needed money do not excuse his failure to communicate the offer. No facts indicate that the offer would expire or that other exigent circumstances excused the lawyer’s failure to communicate. Moreover, nothing indicates that the lawyer knew, based on previous conversations with the terminated employee, that the client would have accepted the settlement offer or had otherwise authorized the lawyer to settle without communicating. See Rule 1.4, cmt. (indicating that the lawyer must promptly communicate a settlement author unless a client has previously indicated that the proposal would be acceptable or unacceptable, or has authorized the lawyer to accept or reject the offer). Answer option D is incorrect because a client’s express consent to a settlement offer is not necessarily required in all cases. Rather, the comments to Rule 1.2 indicate that, at the outset of a representation, a client may authorize the lawyer to act on the client’s behalf without further consultation. A lawyer with such authorization to settle on a client’s behalf may do so without first communicating the settlement offer to the client. No facts indicate that the lawyer had such authorization here, so the Model Rules require the lawyer to first communicate the offer to his client.

Answer 194

D A reasonableness standard. Answer option D is correct. Model Rule 1.4(a) imposes a reasonableness standard. Model Rule 1.4(a)(2) requires a lawyer to reasonably consult with a client regarding the client’s goals for the representation. Similarly, Model Rule 1.4(a)(3) requires a lawyer to keep her client reasonably informed about the status of a case. Answer options A, B, and C are necessarily incorrect for this reason.

Answer 195

B Yes, because the protective order prohibited the lawyer from sharing any further information. Answer option B is correct. Comment 7 to Model Rule 1.4 provides that “[r]ules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client.” Here, the protective order entered by the court in the trade-secret infringement case did exactly that. The motion and exhibits refer extensively to material designated “attorneys’ eyes only.” Under the terms of the protective order, the lawyer could not disclose the contents of the motion and exhibits to the client. The lawyer did not violate his obligations under Model Rule 1.4 by refusing to disclose this information. Answer option A is incorrect. The lawyer’s duty to keep a client reasonably informed about the status of a matter applies throughout the representation, and is not limited to any particular phase of trial. Answer option C is incorrect. The amount and nature of information an attorney must share to keep a client informed about the status of a case is not governed by a hard-and-fast rule. Comment 5 to Rule 1.4 permits significant flexibility. It depends on the complexity of the case, the desire of the client to know the details, and his ability to understand them. Under Comment 6, the information conveyed should be what a “comprehending and responsible adult” would expect. In the context of pending litigation, this guidance applies in the absence of any countervailing obligations imposed by court order. Finally, answer option D is incorrect. The lawyer did respond promptly to his client’s request for information and informed him that the client could not review the specific contents of the motion and exhibits.

Answer 196

A Yes, because the lawyer may establish a system of limited reporting to the business for routine matters like the monthly reports. Answer option A is correct. Comment 6 to Rule 1.4 notes that where many routine matters are involved, a lawyer may arrange with the client a system of limited or occasional reporting. Here, there are many monthly reports to be submitted over the course of a year. Each form is just one page and, therefore, not particularly complex. The lawyer is fulfilling his professional obligation to communicate with the client by providing the business a copy of the report and proof of filing each month. Answer options C and D are necessarily incorrect for this reason. Answer option B is incorrect. Certainly, if the lawyer had a question about client-submitted information, he should ask it. However, the fact that the lawyer did not have questions about the information would not in itself justify his lack of communication under all circumstances. Instead, the lack of prefiling communication here is justified by the simple, routine nature of the filing of the monthly reports.

Answer 197

B Yes, because the exigent circumstances make it reasonable in this instance for the lawyer to reply without consulting with her client first. Answer option B is correct. Comment 3 to Rule 1.4 observes that the exigency of a given situation may require a lawyer to act without prior consultation with her client. Here, the response deadline imposed by opposing counsel made it impossible for the lawyer to consult with the client before responding to the demand for a new merger timeline. These exigent circumstances would justify the lawyer’s response without first consulting the CEO or general counsel. Answer option A is incorrect. Except for the four instances in Model Rule 1.4(a) in which a lawyer is required to consult with her client, the Model Rules take a reasonableness approach. While it might be reasonable for a lawyer to respond to a counter-proposal without specific consultation when she knows her client’s wishes, this is not always true. For example, perhaps the content of the counter-proposal was anticipated, but its timing was not, so that the lawyer is aware of the client’s substantive wishes on the content of any response, but not how fast or how slowly the client would like to respond. Specific consultation might be reasonable and preferred under these circumstances, even though the lawyer is aware of the client’s desired outcome. Answer option C is incorrect. The lawyer’s previous communications with her client demonstrated the importance of the merger timeline, and also the client’s unwillingness to shorten the timeline. Thus, the lawyer was aware of her client’s likely response to the new timeframe and could act accordingly by refusing the request when she was unable to reach the client. Answer option D is incorrect. The quick response time contributed to the exigency of the circumstances. However, whether or not the quick response time was warranted under the circumstances does not bear on whether the lawyer was permitted to respond without consulting with her client.

Answer 198

B Yes, because the bakery owner can terminate the relationship at any time. Answer option B is correct. Rule 1.16(a)(3) of the Model Rules of Professional Conduct states that a lawyer must withdraw from a representation when a client fires him. The Model Rules do not limit the circumstances under which a client can terminate the relationship. Comment 4 to Model Rule 1.16 states that “[a] client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services.” Therefore, the bakery owner can terminate the relationship at any time, regardless of whether the lawyer was on time for the meeting or had some explanation for his tardiness. Answer options A, C, and D are necessarily incorrect for the same reasons.

Answer 199

A Yes, because the husband terminated the relationship. Answer option A is correct. Rule 1.16(a) of the Model Rules of Professional Conduct not only permits but also requires a lawyer to withdraw from representation when the client discharges him. Here, the husband has terminated the relationship with the lawyer. Note that Rule 1.16(d) requires the lawyer to take all steps reasonably practicable to protect the husband’s interests. This obligation applies regardless of whether the lawyer or the client terminates the relationship. In light of the upcoming deadline in the divorce proceeding, such reasonable steps might include notifying the new attorney of the upcoming deadline and forwarding any necessary files as soon as possible, so that the new attorney will be in a position to complete the filing in a timely fashion. Answer option D is necessarily incorrect for the same reason. Answer option B is incorrect. The facts of the problem indicate that the filing is required to finalize the divorce settlement. A final step remains before the substantive goal of the representation has been met. A lawyer must withdraw from the representation, regardless of whether its goals have been met, when the client discharges him under Model Rule 1.16(a). Finally, answer option C is incorrect. Whether withdrawing would impact the husband’s interests is not relevant here, because the husband terminated the relationship. A material adverse effect on the client’s interest is relevant when the lawyer desires to terminate the relationship under Model Rule 1.16(b)(1).

Answer 200

C No, because the lawyer’s condition does not yet materially impair his ability to represent the corporation. Answer option C is correct. Rule 1.16(a)(2) of the Model Rules of Professional Conduct requires a lawyer to withdraw from a representation when his physical or mental condition materially impairs the lawyer’s ability to represent the client. Here, the lawyer’s condition is largely controlled by medication. While his illness requires him to stay home a few days each month, the lawyer is able to continue his work for the client there. Thus, his condition does not yet materially (i.e., seriously) impair his ability to represent the corporation. Answer option B is necessarily incorrect for the same reason. Answer option A incorrectly cites the standard for mandatory withdrawal under Model Rule 1.16(a)(2). A lawyer must withdraw if his condition materially impairs his ability to represent the client, not if the condition has a materially adverse effect on the client’s interests. In any event, a condition that requires an attorney to work from home a few days each month is unlikely to have a material (i.e., important, serious) effect on the lawyer’s ability to represent a client. Answer option D is incorrect. A note from a physician is not necessary to require a lawyer’s withdrawal under Model Rule 1.16(a)(2).

Answer 201

D The agreement must set forth (1) the percentage that shall be due to the lawyer in the event of settlement, trial or appeal; (2) all expenses that will be charged to the client whether or not he prevails; and (3) whether expenses will be deducted before or after the contingent fee is calculated. Answer option D is correct. Rule 1.5(c) of the Model Rules of Professional Conduct requires any contingent fee to be in a writing signed by the client. The writing must set out “the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.” The agreement must also clearly notify the client of any expenses for which the client will be liable whether or not the client prevails. Answer options A, B, and C are incorrect because they omit one or more of these requirements. Answer option E is incorrect because it unnecessarily adds that the written contingency fee agreement must inform the client whether the lawyer will provide an accounting or not. While this is not required information for a written contingent-fee agreement, Model Rule 1.5(c) does require all lawyers working on a contingency basis to provide the client with a separate written statement at the end of the matter. This statement will set forth the outcome of the matter, and if there is a recovery, the statement will show the remittance to the client and how it was determined.

Answer 202

C When representing criminal defendants; and in domestic relations matters, when the fee depends on obtaining a divorce or the amount of the settlement. Answer option C is correct. Rule 1.5(d) of the Model Rules of Professional Conduct prohibits contingent-fee arrangements when representing a defendant in a criminal matter, and in domestic relations matters, when payment depends upon the securing of a divorce or upon the amount of alimony, support, or property settlement. Answer options A, B, and D are necessarily incorrect for the same reasons.

Answer 203

A Yes, because the conditions in the client’s home posed a substantial risk of physical harm and the details of the estate plan were confidential. Answer option A is correct. Rule 1.14(b) of the Model Rules of Professional Conduct permits a lawyer to take protective action on a client’s behalf if the lawyer reasonably believes that the client both: (1) has diminished capacity and (2) is at risk of substantial physical, financial, or other harm unless action is taken. Protective action may include consulting with individuals or entities that have the ability to take action to protect the client. When taking protective action, Model Rule 1.14(c) advises that information relating to the representation of a client with diminished capacity is confidential and remains protected by Model Rule 1.6. A lawyer is impliedly authorized under Model Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. Here, the condition of the client’s home posed a substantial risk of physical harm to the client. Therefore, Model Rule 1.14(b) permitted the lawyer to take protective action, including notifying the client’s daughter of his concerns. However, under this rule, the lawyer may reveal information about the client only to the extent reasonably necessary to protect the client’s interests and prevent harm. In this situation, revealing information about the client’s estate plan was not reasonably necessary to protect the client’s physical well-being. Accordingly, the lawyer acted properly in refusing to answer the daughter’s question about the estate plan. Answer option D is necessarily incorrect for the same reasons. Answer option B is incorrect because it does not include the risk of harm. The client’s difficulty following the conversation might indicate that the client is suffering from diminished capacity. However, diminished capacity alone would not justify protective action taken by the lawyer. Under Model Rule 1.14(a), if a client shows signs of diminished capacity that do not pose a substantial risk of physical, financial, or other harm, the lawyer should maintain a normal client-lawyer relationship to the extent reasonably possible. Answer option C is incorrect because the protective measures authorized by Model Rule 1.14(b) do not require a lawyer to contact a specific person if the lawyer has concerns about a client’s diminished capacity that may pose harm. The comments to Model Rule 1.14(b) mention potential contacts as family members, support groups, professional service providers, adult-protective agencies or “other individuals or entitles that have the ability to protect the client.”

Answer 204

C No, because the client terminated the client-lawyer relationship Answer option C is correct. Under Rule 1.16(a) of the Model Rules of Professional Conduct, a lawyer must end the lawyer-client relationship when the client discharges him. Even if the lawyer believes the client is behaving inappropriately or ending the relationship for a silly reason, the lawyer must obey the client’s request. Here, the client-lawyer relationship ended at the client’s request after the lawyer was late for the meeting. The lawyer may not respond to the offer because he no longer represents the client in the real-estate transaction. Answer option D is necessarily incorrect for these reasons. Answer option A is incorrect. While the client has early-stage Alzheimer’s disease, the facts of the problem indicate that he is still able to make informed decisions about the representation. Therefore, the client is not suffering from diminished capacity under Model Rule 1.14(a). Answer option B is incorrect because a client may end a lawyer-client relationship for any reason or no reason at all. A client’s discharge does not have to be for good cause to be effective.

Answer 205

A When the client would be likely to react imprudently, or when disclosure is prohibited by a court rule or court order during litigation. Answer option A is correct. Comment 7 to Rule 1.4 of the Model Rules of Professional Conduct observes that in some instances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. In litigation, rules or other court orders may also prohibit a lawyer from disclosing certain information to a client. Answer options B, C, and D are necessarily incorrect for these reasons.

Answer 206

B Sufficient information for the client to participate intelligently in decisions about the representation. Answer option B is correct. Comment 5 to Rule 1.4 of the Model Rules of Professional Conduct states that the client should have “sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” Answer options A, C, and D are necessarily incorrect for this reason.

Answer 207

B Yes, because withdrawing before the appeal will not have a materially adverse effect on the corporation’s interests. Answer option B is correct. Rule 1.16(b)(1) of the Model Rules of Professional Conduct permits a lawyer to withdraw from a representation if the withdrawal can be accomplished without material adverse effect on the interests of the client. Here, the client’s appellate brief is not due for several months. The client corporation has more than enough time to secure a new lawyer to represent it on appeal. Withdrawing promptly after the close of the trial will not have a material adverse effect on the client’s interests. Answer option C is necessarily incorrect for these reasons.Answer option A is incorrect. The Model Rules do not provide a bright-line framework for how disputes regarding the means for achieving the client’s objectives should be resolved. Rather, Comment 2 to Model Rule 1.2 suggests that clients defer to their lawyers’ special knowledge, while lawyers defer to clients on expense issues. Here, the fact that the corporation’s general counsel sometimes reined in the lawyer on spending does not necessarily entitle the lawyer to withdraw from the representation. Finally, answer option D is incorrect. A lawyer is not obligated to remain in a client-lawyer relationship until the goals of the representation are met. Under Model Rule 1.16, withdrawal is required under certain circumstances and permissible under others, regardless of the status of the client’s matter.

Answer 208

C No, because withdrawing would have a materially adverse effect on the business’s interests. Answer option C is correct. Rule 1.16(b)(1) of the Model Rules of Professional Conduct permits a lawyer to withdraw from representing a client if the withdrawal can be accomplished without a material adverse effect on the interests of the client. Here, withdrawing the day before the business’s tax return is due would likely have a material adverse effect on the business’s interests, because it would be very difficult for the business to secure new representation with sufficient time to file the taxes. Therefore, the lawyer may not withdraw from the representation.Answer option A is incorrect. Model Rule 1.16(b)(5) permits a lawyer to withdraw from representing a client if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services AND has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. Here, the lawyer did not warn the business’s owner that he would withdraw from the representation if his bills continued to go unpaid. Nor did the client sign any written agreement regarding fees that might also have provided a warning. Answer option B is incorrect. Model Rule 1.16(b) does not list nonpayment of fees as an express ground for a lawyer’s optional termination of a client relationship. Answer option D is incorrect. In addition to Model Rule 1.16(b)(5) discussed above, nonpayment of fees could be grounds for optional termination under several subsections. Under Model Rule 1.16(b)(6), the nonpayment could result in an unreasonable financial burden on the lawyer. Under Model Rule 1.16(b)(7), the nonpayment might also constitute “other good cause” for the withdrawal.

Answer 209

C Information received from both prospective clients and current clients, regardless of whether the client requests confidentiality. Answer option C is correct. The Model Rules require a lawyer to keep confidential information obtained from both current and prospective clients, regardless of whether an express request for confidentiality is made. Answer options A, B, and D are necessarily incorrect for this reason. Note that a lawyer’s duty to keep client information confidential applies both during and outside the timeframe of any litigation or transactions the lawyer engages in as part of the representation.

Answer 210

C Local ethics rules. Answer option C is correct. The Model Rules of Professional Conduct do not attempt to provide a line-drawing framework for resolving a conflict between a client and lawyer about the means to achieve the client’s objectives. Rather, the comments to Rule 1.4 suggest that lawyers continue to consult with their clients about any disputes, and also look to local ethics rules that may provide more specific guidance. Answer options A, B, and D are necessarily incorrect for these reasons. Note, however, that the sources named in answer options B and D may also provide the lawyer with guidance.

Answer 211

D No, because a lawyer is not permitted to withhold information from the client for his own convenience. Answer option D is correct. Comment 7 to Rule 1.4 of the Model Rules of Professional Conduct notes that a lawyer is never justified in withholding information from a client when the only reason is to serve the lawyer’s own interests or convenience. Here, the lawyer’s proposed reason for delaying disclosure of the psychiatrist’s recommendations to the husband is to give the lawyer more time to formulate an appropriate strategy and cope with an anticipated increased workload. These reasons serve the lawyer’s own interests, not the client’s interests. Therefore, the lawyer may not withhold the information from the husband under the Model Rules. Answer option B is necessarily incorrect for the same reason. Answer option A is incorrect. Comment 7 to Model Rule 1.4 does permit a lawyer to withhold information from a client where a client is likely to react imprudently to an immediate communication. Here, however, the husband’s anticipated reaction is not imprudent. It would be reasonable and logical for a client to want to hire additional experts after receiving an unfavorable expert recommendation. Answer option C is incorrect. The Model Rules prohibit the withholding here because it is solely for the lawyer’s own convenience. The prospect of the husband learning the information from his wife is a practical reason for immediate disclosure; however, it is not the reason the Model Rules prohibit the lawyer from delaying disclosure of the information to the husband.

Answer 212

B Yes, because withdrawing will not have a material adverse effect on the client’s interests. Answer option B is correct. Rule 1.16(b)(1) of the Model Rules of Professional Conduct permits a lawyer to withdraw from the representation of a client for any reason, if the withdrawal can be accomplished without a material adverse effect on the client’s interests. Examples of factors that could materially harm a client's interests include an impending deadline or expiration of an applicable limitations period; these types of circumstances might prohibit optional withdrawal under Model Rule 1.16(b)(1). Here, there are no facts to indicate that the lawyer’s withdrawal would have a material adverse effect on the client’s interests. Accordingly, the lawyer is permitted to withdraw from the matter. Answer options A and D, related to the lawyer’s ability to provide competent representation to the client on the environmental claim, are both incorrect. If a lawyer cannot handle a representation competently, then withdrawal is required under Model Rule 1.16(a)(1), as continuing in the representation otherwise would violate the Model Rules. However, a lawyer’s competence is not the relevant issue in a permissive withdrawal from representation of a client in civil matters, if the client’s interests will not be adversely affected. Here, the lawyer has a friend with expertise in environmental litigation, with whom the lawyer has already consulted about the client’s standing arguments. The friend has also offered to assist the lawyer with the client's potential lawsuit against the heating-system manufacturer. Therefore, the lawyer may continue to consult with his attorney friend to provide competent representation to the client. See Model Rule of Professional Conduct 1.1 cmt. 1. However, this does not mean that the lawyer must continue the representation, which is what the question asked. Answer option C is incorrect both because it is an overbroad statement of the law and because the client’s right to pursue the environmental claim is not the relevant issue. A lawyer must file any and all nonfrivolous claims the client wishes to pursue. However, a lawyer may not file a frivolous claim, even if the client wishes to pursue it. See Model Rule of Professional Conduct 3.1. Here, although the client has an uphill battle on the standing issue, the facts do not indicate that his claim is frivolous. Difficult, even likely unsuccessful arguments, are not frivolous under the Model Rules of Professional Conduct. Nevertheless, as explained above, the fact that the client has the right to pursue this claim does not mean that the lawyer is prohibited from withdrawing from the representation.

Answer 213

D No, because the lawyer has no good cause to withdraw from the representation. Answer option D is correct. As explained in more detail below, here, neither the daughter’s requests for daily updates nor her nonpayment for one month provide the lawyer with a reason sufficient to optionally withdraw from the representation under the Rule 1.16(b) of the Model Rules of Professional Conduct. The facts also do not suggest any additional good cause for withdrawal that would suffice under Model Rule 1.16(b)(7).Regarding the daughter’s request for daily communication, Model Rule 1.4(a)(2) requires a lawyer to keep the client reasonably informed about the status of the matter. The Rule does not specify the regularity of contact required. In light of the daily developments in the matter and the emotional strain on the daughter, a daily update is not unreasonable. Answer option A is necessarily incorrect for this reason.Regarding the daughter’s nonpayment, Model Rule 1.16(b)(5) permits a lawyer to withdraw from a representation when the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. Here, the daughter has received no warning that her nonpayment of just one month would result in the lawyer’s withdrawal. Moreover, the written fee agreement states that nonpayment of the monthly fee for two months, not one, will result in the lawyer’s withdrawal. Answer option B is necessarily incorrect for this reason.Finally, answer option C is incorrect. A client’s behavior, including requests for communication, can render a representation unreasonably difficult and provide a lawyer with grounds for optional withdrawal under Model Rule 1.16(b)(6). However, the facts set forth that the matter has near daily filings, and the daughter has found the matter emotionally strenuous. Under these circumstances, the daughter’s daily contacts most likely do not render the representation unreasonably difficult. If, on the other hand, the lawyer was representing the daughter by filing her taxes quarterly, daily requests for information updates would be unreasonable and arguably render the representation unreasonably difficult.

Answer 214

A A client’s unsolicited payment of the lawyer. Answer option A is correct. Payment is not necessary to form a client-lawyer relationship, and a client’s unilateral or unsolicited payment of a lawyer cannot alone form a client-lawyer relationship. In fact, the Model Rules of Professional Conduct encourage lawyers to volunteer their services and represent clients on a pro bono basis, collecting no fees whatsoever. Answer options B, C, and D are incorrect, because each names one of the three main ways a client-lawyer relationship forms under the Model Rules of Professional Conduct.

Answer 215

B When the lawyer provides no prompt disclaimer limiting his responsibilities, after the person provides information to the lawyer in response to the lawyer’s specific solicitation. Answer option B is correct. Rule 1.18(a) of the Model Rules of Professional Conduct provides that a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. Whether communications with a lawyer are a “consultation” within the meaning of the rule depends on the circumstances. According to Comment 2 to Model Rule 1.18(a), “a consultation is likely to have occurred if a lawyer, either in person or through advertising, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.”Answer option A is incorrect because a prospective-client relationship does not form anytime a person provides a lawyer with information. If the lawyer did not solicit the information, then no prospective-client relationship will form. Answer options C and D are incorrect because they both describe situations in which a client-lawyer relationship has likely formed, but the question asks when the prospective-client relationship forms. A person becomes a prospective client upon a consultation with the lawyer about the possibility of forming a client-lawyer relationship. An attorney has some obligations to a prospective client, but need not ultimately accept the representation.

Answer 216

B Yes, because the lawyer finds the client’s cause so repugnant that it will impair the client-lawyer relationship. Answer option B is correct. Rule 6.2 of the Model Rules of Professional Conduct permits a lawyer to refuse a court appointment for good cause, which includes clients or causes so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client. Here, the potential client’s white-supremacist views, which would certainly arise during the course of the representation, are so repugnant to the lawyer that they would impair the lawyer-client relationship and the lawyer’s ability to represent the potential client. The Model Rules permit the lawyer to refuse the court appointment under these circumstances. Answer options C and D are necessarily incorrect for these reasons. Answer option A is also incorrect. A lawyer may not refuse a court appointment for any reason. Rather, Comment 1 to Model Rule 6.2 observes that “[a]ll lawyers have a responsibility to assist in providing pro bono public service. An individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients.” For this reason, lawyers may only refuse a court appointment for good cause.

Answer 217

C Most other products liability lawyers in the area charge 30 percent of any damages or settlement amount. Answer option C is correct. Rule 1.5(a)(3) of the Model Rules of Professional Conduct states that the fee customarily charged in the locality for similar legal services is one of the factors used to evaluate the reasonableness of a lawyer’s fees. The fact that other attorneys in the area charge a lower percentage contingent fee for similar work supports the client’s argument that the lawyer’s 50 percent fee is unreasonable. Answer options A and B are incorrect. The facts in each of those answer options would support the lawyer’s argument that the fee is reasonable. They do not support the client’s argument that the fee is not reasonable. Answer option D is incorrect because “[c]ontingent fees, like any other fees, are subject to the reasonableness standard” of Model Rule 1.5(a). See Comment 3, Model Rule of Professional Conduct 1.5.

Answer 218

D The lawyer should remind the client of the upcoming deadline and seek further information on the identity of new counsel to forward any relevant files to her. Answer option D is correct. A client is entitled to terminate a lawyer for any reason or no reason at all. Thus, the client’s shouting at the end of the last meeting that the lawyer’s services were no longer needed effectively discharged the lawyer. Upon termination of the client-lawyer relationship by either party, Rule 1.16(d) of the Model Rules of Professional Conduct requires the lawyer to take steps reasonably practicable to protect a client’s interests. Therefore, the lawyer should remind the client of the upcoming deadline and forward any relevant files to new counsel to mitigate any damage to the client. Answer options B and C are necessarily incorrect because the lawyer cannot withdraw from a representation the client has already terminated. Finally, answer option A is incorrect because the client’s termination need not be in writing to be effective.

Answer 219

D No, because the public offering’s poor performance is a material change in circumstances. Answer option D is correct. The comments to Model Rule 1.2 specify that at the outset of a representation, a client may authorize a lawyer “to take specific action on the client’s behalf without further consultation.” The lawyer may act on this implied authority for the duration of the representation, unless there is a material change in circumstances. Here, the start-up raised substantially less than expected in its public offering. In light of this material change in the start-up’s circumstances, the lawyer should consult with the start-up pursuant to Model Rule 1.4 to determine whether the start-up’s legal strategy has changed. Answer option A is incorrect. The comments to Model Rule 1.2 specify that at the outset of a representation, a client may authorize a lawyer “to take specific action on the client’s behalf without further consultation.” The lawyer may act on this implied authority for the duration of the representation, unless there is a material change in circumstances. Here, the start-up raised substantially less than expected in its public offering. In light of this material change in the start-up’s circumstances, the lawyer should consult with the start-up pursuant to Model Rule 1.4 to determine whether the start-up’s legal strategy has changed. The lawyer should not rely on the start-up’s previous authorization to sue. Answer option B is incorrect. The comments to Model Rule 1.2 specify that at the outset of a representation, a client may authorize a lawyer “to take specific action on the client’s behalf without further consultation.” The lawyer may act on this implied authority for the duration of the representation, unless there is a material change in circumstances. Here, the start-up raised substantially less than expected in its public offering. Even if the capital raised was sufficient to cover the costs of prosecuting the infringer, the start-up’s priorities may have shifted in response to the gap between the predicted and actual capital raised from the public offering. The capital had been earmarked, in part, for expenses incurred in pursuing the start-up’s legal strategies, of which the prosecution of potential trademark infringers formed just one part. In light of this material change in the start-up’s circumstances, the lawyer should consult with the start-up pursuant to Model Rule 1.4 to determine whether the start-up’s legal strategy has changed. Answer option C is incorrect. The comments to Model Rule 1.2 specify that at the outset of a representation, a client may authorize a lawyer “to take specific action on the client’s behalf without further consultation.” The lawyer may act on this implied authority for the duration of the representation, unless there is a material change in circumstances. Model Rule 1.2(a) does not specify that a lawyer must have specific authority from his client to initiate a lawsuit. In a civil matter, Model Rule 1.2(a) specifies only that a lawyer must have specific authority from a client to settle a matter. Here, if there had not been a material change in circumstances, the lawyer could sue the potential infringer without seeking specific authority from the start-up. The reason the lawyer cannot do so is because of a material change in circumstances.

Answer 220

D No, because the expenses were not specified in the written contingent-fee agreement. Answer option D is correct. In a contingent-fee agreement, an attorney takes a percentage of the client’s recovery as a fee. Although contingent-fee agreements are permissible in most types of cases, they must clearly explain to clients the treatment of litigation expenses, court fees, and other expenses. Specifically, Model Rule of Professional Conduct 1.5(c) requires that a written contingent-fee agreement specify the litigation and other expenses to be deducted from the recovery and whether such expenses are to be deducted before or after the contingent fee is calculated. Here, the written agreement did not mention expenses, so the lawyer is not entitled to recover them. The lawyer’s recovery is limited to the specified contingent fee of 30 percent of the motorist’s recovery. Answer option A is incorrect. In a contingent-fee agreement, an attorney takes a percentage of the client’s recovery as a fee. Although contingent-fee agreements are permissible in most types of cases, they must clearly explain to clients the treatment of litigation expenses, court fees, and other expenses. Specifically, Model Rule 1.5(c) requires that a written contingent-fee agreement specify the litigation and other expenses to be deducted from the recovery and whether such expenses are to be deducted before or after the contingent fee is calculated. Here, the written agreement did not mention expenses, so the lawyer is not entitled to recover them. The lawyer’s recovery is limited to the specified contingent fee of 30 percent of the motorist’s recovery. If the expenses were reasonable and related to the litigation, the lawyer would be able to recover them if the lawyer had included the appropriate language in the written fee agreement. Answer option B is incorrect. In a contingent-fee agreement, an attorney takes a percentage of the client’s recovery as a fee. Although contingent-fee agreements are permissible in most types of cases, they must clearly explain to clients the treatment of litigation expenses, court fees, and other expenses. Specifically, Model Rule 1.5(c) requires that a written contingent-fee agreement specify the litigation and other expenses to be deducted from the recovery and whether such expenses are to be deducted before or after the contingent fee is calculated. Here, the written agreement did not mention expenses, so the lawyer is not entitled to recover them. The lawyer’s recovery is limited to the specified contingent fee of 30 percent of the motorist’s recovery. If the expenses were reasonable and related to the litigation, the lawyer would be able to recover them if the lawyer had included the appropriate language in the written fee agreement. Answer option C is incorrect. In a contingent-fee agreement, an attorney takes a percentage of the client’s recovery as a fee. Although contingent-fee agreements are permissible in most types of cases, they must clearly explain to clients the treatment of litigation expenses, court fees, and other expenses. Specifically, Model Rule 1.5(c) requires that a written contingent-fee agreement specify the litigation and other expenses to be deducted from the recovery and whether such expenses are to be deducted before or after the contingent fee is calculated. Here, the written agreement did not mention expenses, so the lawyer is not entitled to recover them. The lawyer’s recovery is limited to the specified contingent fee of 30 percent of the motorist’s recovery. However, no rule prohibits a lawyer from recovering expenses in a contingent-fee case. If the expenses were reasonable and related to the litigation, the lawyer would be able to recover them if the lawyer had included the appropriate language in the written fee agreement.

Answer 221

D If the lawyer knows the client has used the lawyer’s legal services to perpetuate a crime or fraud. Answer option D is correct. Under Rule 1.16(a) of the Model Rules of Professional Conduct, a lawyer must withdraw from representation if (1) the representation will violate either the rules of professional conduct or the law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; (3) the client discharges the lawyer; or (4) the client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s attempt to dissuade the client from doing so. Under Rule 1.16(b), a lawyer has the option of terminating the lawyer-client relationship if the lawyer knows or reasonably believes that the client has used the legal services to perpetuate a fraud or crime, but it is not a requirement. Here, if the client has used the lawyer’s services to perpetuate a crime or fraud, the lawyer may, but does not have to, withdraw from representation. In contrast, the other answer options all describe situations in which withdrawal is mandatory. Answer option A is incorrect. Under Rule 1.16(a) of the Model Rules of Professional Conduct, a lawyer must withdraw from representation if (1) the representation will violate either the rules of professional conduct or the law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; (3) the client discharges the lawyer; or (4) the client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s attempt to dissuade the client from doing so. Under Rule 1.16(b), a lawyer has the option of terminating the lawyer-client relationship if the lawyer knows or reasonably believes that the client has used the legal services to perpetuate a fraud or crime, but it is not a requirement. Here, if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client, the lawyer must withdraw from representation. In contrast, if the client has used the lawyer’s services to perpetuate a crime or fraud, the lawyer may, but does not have to, withdraw from representation. Answer option B is incorrect. Under Rule 1.16(a) of the Model Rules of Professional Conduct, a lawyer must withdraw from representation if (1) the representation will violate either the rules of professional conduct or the law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; (3) the client discharges the lawyer; or (4) the client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s attempt to dissuade the client from doing so. Under Rule 1.16(b), a lawyer has the option of terminating the lawyer-client relationship if the lawyer knows or reasonably believes that the client has used the legal services to perpetuate a fraud or crime, but it is not a requirement. Here, if the client discharges the lawyer, the lawyer must withdraw from representation. In contrast, if the client has used the lawyer’s services to perpetuate a crime or fraud, the lawyer may, but does not have to, withdraw from representation. Answer option C is incorrect. Under Rule 1.16(a) of the Model Rules of Professional Conduct, a lawyer must withdraw from representation if (1) the representation will violate either the rules of professional conduct or the law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; (3) the client discharges the lawyer; or (4) the client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s attempt to dissuade the client from doing so. Under Rule 1.16(b), a lawyer has the option of terminating the lawyer-client relationship if the lawyer knows or reasonably believes that the client has used the legal services to perpetuate a fraud or crime, but it is not a requirement. Here, if the representation would violate the rules of professional conduct or another law, the lawyer must withdraw from representation. In contrast, if the client has used the lawyer’s services to perpetuate a crime or fraud, the lawyer may, but does not have to, withdraw from representation.

Answer 222

B The client’s refusal to cooperate has rendered the representation unreasonably difficult. Answer option B is correct. Rule 1.16(b) of the Model Rules of Professional Conduct provides several grounds for a lawyer to elect to withdraw from a representation, despite the withdrawal having a material adverse effect on the client’s interests. One such ground is if the client’s behavior, such as noncooperation, renders the representation unreasonably difficult. Here, if the client’s refusal to cooperate has rendered the lawyer’s representation unreasonably difficult, the lawyer may withdraw under Rule 1.16(b)(6). The lawyer may withdraw under these circumstances even if withdrawal will have an adverse effect on the client’s interests. Answer option A is incorrect. Rule 1.16(b) of the Model Rules of Professional Conduct provides several grounds for a lawyer to elect to withdraw from a representation, despite the withdrawal having a material adverse effect on the client’s interests. One such ground is if the case will impose an unreasonable financial burden on the lawyer. Here, the matter will only be less profitable, not impose an unreasonable financial burden on the lawyer. Therefore, the lawyer would not have grounds to withdraw under those circumstances. Rather, the lawyer can withdraw under Rule 1.16(b)(6) if the client’s refusal to cooperate has rendered the lawyer’s representation unreasonably difficult. Answer option C is incorrect. Rule 1.16(b) of the Model Rules of Professional Conduct provides several grounds for a lawyer to elect to withdraw from a representation, despite the withdrawal having a material adverse effect on the client’s interests. One such ground is if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. Here, the lawyer is mildly distracted and cannot perform at her typically high level. These facts fall far short of material impairment. Rather, the lawyer can withdraw under Rule 1.16(b)(6) if the client’s refusal to cooperate has rendered the lawyer’s representation unreasonably difficult. Answer option D is incorrect. Rule 1.16(b) of the Model Rules of Professional Conduct provides several grounds for a lawyer to elect to withdraw from a representation, despite the withdrawal having a material adverse effect on the client’s interests. One such ground is if the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent. Here, the client has merely proposed or discussed illegal activities. A mere proposal to engage in illegal activity falls far short of persisting in a course of illegal activity. Rather, the lawyer can withdraw under Rule 1.16(b)(6) if the client’s refusal to cooperate has rendered the lawyer’s representation unreasonably difficult.

Answer 223

C No, because the lawyer first needs written consent from the start-up for the fee-sharing arrangement. Answer option C is correct. The Model Rules of Professional Conduct permit attorneys to split fees. However, Rule 1.5(e)(2) requires a client’s written consent for lawyers from different firms to share fees. Here, the lawyer and the acquaintance work at different firms. Therefore, before assigning the franchise work to his acquaintance, the lawyer must secure the start-up’s consent to the fee-sharing arrangement in writing. Answer option A is incorrect. The Model Rules of Professional Conduct permit attorneys to split fees. However, Rule 1.5(e)(2) requires a client’s written consent for lawyers from different firms to share fees. Here, it may be reasonable for the lawyer to limit the scope of his representation because he lacks experience in franchise law. Therefore, the lawyer’s idea of having the acquaintance assist on the franchising issues is reasonable. Nonetheless, the lawyer still needs to secure the start-up’s consent to the fee-sharing arrangement in writing. Answer option B is incorrect. The Model Rules of Professional Conduct permit attorneys to split fees. However, Rule 1.5(e)(2) requires a client’s written consent for lawyers from different firms to share fees. Here, it may be reasonable for the lawyer to limit the scope of his representation because he lacks experience in franchise law. Therefore, the lawyer’s idea of having the acquaintance assist on the franchising issues is reasonable. Nonetheless, the lawyer still needs to secure the start-up’s consent to the fee-sharing arrangement in writing. Answer option D is incorrect. The Model Rules of Professional Conduct permit attorneys to split fees. However, Rule 1.5(e)(2) requires a client’s written consent for lawyers from different firms to share fees. Model Rule 1.2(c) permits a lawyer to limit the scope of his representation, as long as the limit is reasonable under the circumstances and the client provides informed consent. Here, the franchising issues are new in the representation, and likely outside the original scope of representation. Additionally, the lawyer has no experience with handling franchising issues. Under the circumstances, his proposed limit is reasonable. Therefore, the lawyer would not necessarily be required to handle the franchise issues. The lawyer can bring in the acquaintance to handle the franchise issues instead. Nonetheless, the lawyer still needs to secure the start-up’s consent to the fee-sharing arrangement in writing.

Answer 224

A Yes, because the corporation is persisting in a course of action that the lawyer believes is fraudulent. Answer option A is correct. Rule 1.16(b)(2) of the Model Rules of Professional Conduct permits a lawyer to withdraw from a representation if the lawyer reasonably believes that the client is engaged in a criminal or fraudulent course of action involving the lawyer’s services, and the client persists in that course of action. If a lawyer represents an institutional client, such as a corporation, an attorney must usually alert higher-level authorities, such as the executives or board of directors, of the client’s fraudulent course of action. Here, the lawyer has a reasonable belief that the corporation has committed fraud while using his services. The corporation has refused to remedy the fraud and correct its filings, indicating its intention to persist in a course of fraudulent action. Therefore, the lawyer may withdraw from the representation. Moreover, Model Rule 1.16(a)(1) requires a lawyer to withdraw when the representation will result in a violation of law. Arguably, continuing to represent the corporation while it persists in its fraudulent conduct would violate the law. Answer option B is incorrect. Rule 1.16(b)(2) of the Model Rules of Professional Conduct permits a lawyer to withdraw from a representation if the lawyer reasonably believes that the client is engaged in a criminal or fraudulent course of action involving the lawyer’s services, and the client persists in that course of action. If a lawyer represents an institutional client, such as a corporation, an attorney must usually alert higher-level authorities, such as the executives or board of directors, of the client’s fraudulent course of action. The comments to Model Rule 1.2 suggest that if disputes about how best to achieve the goals of a representation arise, the client should defer to the lawyer’s special knowledge and expertise on legal issues. However, a client’s failure to defer to a lawyer’s strategic choices is usually not grounds for withdraw. Therefore, a single dispute about the means to achieve the client’s goals would not provide grounds for a lawyer to withdraw from the representation. Here, the lawyer has grounds for withdrawal because the disagreement concerns the corporation’s plans to continue engaging in fraudulent conduct, not about strategic decisions. Answer option C is incorrect. Rule 1.16(b)(2) of the Model Rules of Professional Conduct permits a lawyer to withdraw from a representation if the lawyer reasonably believes that the client is engaged in a criminal or fraudulent course of action involving the lawyer’s services, and the client persists in that course of action. If a lawyer represents an institutional client, such as a corporation, an attorney must usually alert higher-level authorities, such as the executives or board of directors, of the client’s fraudulent course of action. Here, withdrawing so close to the filing deadline might have a materially adverse effect on the corporation’s interests. However, a lawyer may withdraw if his services were misused even if withdrawal would materially prejudice the client. Here, the lawyer may withdraw despite the possibility of material prejudice to the client, because the corporation used the lawyer’s services to make fraudulent filings. Answer option D is incorrect. Rule 1.16(b)(2) of the Model Rules of Professional Conduct permits a lawyer to withdraw from a representation if the lawyer reasonably believes that the client is engaged in a criminal or fraudulent course of action involving the lawyer’s services, and the client persists in that course of action. If a lawyer represents an institutional client, such as a corporation, an attorney must usually alert higher-level authorities, such as the executives or board of directors, of the client’s fraudulent course of action. Here, the lawyer has fulfilled his obligation to report the misconduct to higher-level authorities in the corporation. The higher-level corporate officials have declined to stop or remedy the fraud. Therefore, the lawyer has no further obligation to attempt to dissuade the client from committing misconduct, and instead, the lawyer may withdraw from representation.

Answer 225

A Yes, because the initial fee he charged was unreasonable. Answer option A is correct. Pursant to Rule 1.5, an attorney cannot make an agreement for, charge, or collect an unreasonable fee. Numerous factors are relevant in determining whether a fee is reasonable, such as the attorney’s skill and experience, the complexity of the work, and any time constraints imposed. However, the factors listed in Rule 1.5 are not exclusive, and not every factor is relevant in each case. Here, the attorney violated Rule 1.5 by making an agreement for an unreasonable fee. Although many factors are relevant in determining whether a fee is reasonable, a fee of $10,000 for a simple matter requiring no more than a few hours of work is almost certainly unreasonable, especially in light of other lawyers’ charging approximately one-tenth that amount for the same work. The attorney is subject to discipline for charging the unreasonable fee, even though he never ultimately collected it. Answer option B is incorrect. Nothing in the Rules of Professional Conduct require an attorney to charge an hourly fee. Attorneys can bill hourly, on a flat-fee basis, on contingency, or based on some combination of those, as long as the overall fee is reasonable and the terms are disclosed to the client. However, an attorney violates Rule 1.5 by making an agreement for an unreasonable fee, no matter the type. Although many factors are relevant in determining whether a fee is reasonable, here, a fee of $10,000 for a simple matter requiring no more than a few hours of work is almost certainly unreasonable, especially in light of other lawyers’ charging approximately one-tenth that amount for the same work. The attorney is subject to discipline for charging the unreasonable fee, even though he never ultimately collected it. Answer option C is incorrect. Rule 1.5 prohibits attorneys from making an agreement for an unreasonable fee, even if the amount is never ultimately charged. Here, the attorney is subject to discipline for making the initial fee agreement, even if the amount the woman eventually paid was reasonable. A fee of $10,000 for a simple matter requiring no more than a few hours of work is almost certainly unreasonable, especially in light of other lawyers’ charging approximately one-tenth that amount for the same work. The attorney is subject to discipline for charging the unreasonable fee, even though he never ultimately collected it. Answer option D is incorrect. Rule 1.5 prohibits attorneys from making an agreement for an unreasonable fee. A fee can be unreasonable even if it is in writing, is fully disclosed to the client before the start of representation, and is agreed to by the client. Many factors are relevant in determining whether a fee is reasonable. Here, a fee of $10,000 for a simple matter requiring no more than a few hours of work is almost certainly unreasonable, especially in light of other lawyers’ charging approximately one-tenth that amount for the same work. The attorney is subject to discipline for charging the unreasonable fee, even though he never ultimately collected it and even though the fee was disclosed and agreed to by the woman.

Answer 226

A Yes, because the contract modification was fair and reasonable when made. Answer option A is correct. Modifications to fee contracts are permissible, but they are given special scrutiny. A client may be afraid to reject a proposed change to the fee agreement due to the burden of changing lawyers, because the client believes that refusal will cause the attorney to be resentful of the client or because the client believes that any proposed modification must be in the client’s best interests. Therefore, an attorney bears the burden of proving that any modification made to a contract was fair and reasonable when made. Here, the change to a contingent-fee contract was fair and reasonable when made. The defendant’s unexpected impleader of several third-party defendants significantly increased the expected cost of litigation. Under those circumstances, a client might reasonably prefer a contingent-fee contract rather than an hourly rate contract. The attorney explained the benefits and drawbacks of each type of arrangement and permitted the client to continue with the original fee agreement if the client desired. Although the case settled shortly after the modification, meaning that the original hourly rate contract would have been better for the client, neither the client nor the attorney knew of or anticipated this occurrence. Therefore, the modification was fair and reasonable even though it worked to the disadvantage of the client. Accordingly, the attorney’s conduct was proper. Answer option B is incorrect. Contract modifications are permissible even in the absence of unforeseen circumstances out of the attorney’s control. The lack of changed circumstances may raise extra scrutiny about why the initial contract was inadequate and needed to be changed, but it does not categorically prohibit modification. An attorney bears the burden of proving that any modification made to a contract was fair and reasonable when made. Here, the change to a contingent-fee contract was fair and reasonable when made. The defendant’s unexpected impleader of several third-party defendants significantly increased the expected cost of litigation. Under those circumstances, a client might reasonably prefer a contingent-fee contract rather than an hourly rate contract. The attorney explained the benefits and drawbacks of each type of arrangement and permitted the client to continue with the original fee agreement if the client desired. Although the case settled shortly after the modification, meaning that the original hourly rate contract would have been better for the client, neither the client nor the attorney knew of or anticipated this occurrence. Therefore, the modification was fair and reasonable even though it worked to the disadvantage of the client. Accordingly, the attorney’s conduct was proper. Answer option C is incorrect. The fairness and reasonableness of a modification is judged when the modification is made, not in hindsight. Here, the change to a contingent-fee contract was fair and reasonable when made, even though it ultimately disadvantaged the client. Accordingly, the attorney’s conduct was proper. Answer option D is incorrect. Contract modifications are not categorically prohibited just because an attorney has performed substantial work on the case. Such modifications may be subject to extra scrutiny because a client might be afraid of rejecting a modification due to the difficulties of obtaining new counsel in the middle of litigation. However, a modification will still be permitted if fair and reasonable. An attorney bears the burden of proving that any modification made to a contract was fair and reasonable when made. Here, the change to a contingent-fee contract was fair and reasonable when made. The defendant’s unexpected impleader of several third-party defendants significantly increased the expected cost of litigation. Under those circumstances, a client might reasonably prefer a contingent-fee contract rather than an hourly rate contract. The attorney explained the benefits and drawbacks of each type of arrangement and permitted the client to continue with the original fee agreement if the client desired. Although the case settled shortly after the modification, meaning that the original hourly rate contract would have been better for the client, neither the client nor the attorney knew of or anticipated this occurrence. Therefore, the modification was fair and reasonable even though it worked to the disadvantage of the client. Accordingly, the attorney’s conduct was proper.

Client-Lawyer Relationship Flashcards

1 Series (250 cards)