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Flashcards in FL Professional Responsibility Deck (31)
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1

With certain exceptions, an attorney who __________ that another lawyer has committed a violation of the RPC that raises a __________ question as to that lawyer’s honesty or fitness as a lawyer in other respects MUST inform the appropriate professional authority.


A Knows; reasonable

B Knows or reasonably believes; reasonable

C Knows; substantial

D Knows or reasonably believes; substantial

C Knows; substantial

A lawyer having knowledge that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer’s honesty or fitness as a lawyer in other respects must inform the appropriate professional authority. (However, this rule does not require disclosure of confidential information or certain information gained while participating in mediation proceedings or in an approved lawyers’ assistance program dealing with substance abuse problems.)

2

Under her duty of candor to the tribunal, a lawyer MUST take the following actions (Select all that apply):

A Take remedial measures if the lawyer finds out that her client has already provided false material evidence

B Disclose controlling legal authority that is damaging to her client, if opposing counsel has failed to do so

C Refuse to offer evidence she reasonably believes is false

D Correct any false statement of material fact that she previously made to the court

A., B., and D. are correct because these actions are explicitly required by RPC 3.3. C. is wrong because while a lawyer may refuse to offer evidence that she reasonably believes is false (but does not know is false), she is not required to do so. A lawyer must to refuse offer evidence that she knows is false.

3

A lawyer who represents a client in a matter speaks with a person who is represented by counsel in relation to that same matter. This communication is proper if any of the following facts are true (Select all that apply):

A The person is not an actual party to the matter

B The person expressly consented to the communication by the lawyer

C The lawyer has no reason to believe that the person is represented by counsel

D The communication is unrelated to the matter

C & D.

In the representation of a client, a lawyer generally must not communicate about the subject of the representation with a person he knows to be represented by counsel in the matter unless the other counsel has granted permission or he is otherwise authorized by law or court order to make such direct communication. B. is wrong because this prohibition applies even if the person has consented to the communication. It also applies to any person represented by counsel concerning the matter to which the communication relates, even if the person is not formally a party to the matter. Thus, A. is wrong. C. is correct because the prohibition on communications with a represented person applies only if the lawyer knows that the person is represented in the matter to be discussed (or if knowledge can be inferred from the circumstances). D. is correct because this rule does not prohibit communications about matters outside the representation.

4

Under the RPC, in which situation(s) is a lawyer REQUIRED to disclose a client’s confidential information? (Select all that apply)


A None; all confidential exceptions allow permissive (not mandatory) disclosure

B To prevent the client from committing a crime

C To establish a defense in a malpractice claim against the lawyer

D To prevent a person’s reasonably certain death

B & D.

Generally, a lawyer must not reveal information relating to the representation of a client. However, there are several exceptions in which a lawyer may reveal confidential information. A lawyer must reveal such information to the extent she reasonably believes necessary to prevent the client from committing a crime or to prevent death or substantial bodily harm to another. Thus, B. and D. are correct, and A. is wrong. C. is wrong because this confidentiality exception permits, but does not require, a lawyer to disclose the information.

5

Which statements regarding the ethical duty of confidentiality are correct? (Select all that apply)

A It prevents all forms of disclosure by the lawyer

B It prevents only in-court testimony by the lawyer

C It applies to all types of confidential information relating to the representation

D It applies to confidential lawyer-client communications only

A & C.

It is important to be able to distinguish the attorney-client privilege from the ethical duty of confidentiality. The attorney-client privilege allows a client to refuse to testify and prevent his attorney from testifying in court about communications between the two. It applies to confidential communications made by an individual to an attorney who is sought out for the purpose of obtaining legal advice. An attorney’s ethical duty of confidentiality is much broader. It applies to all types of information relating to the representation (not just communications), and protects the information from being disclosed in any manner (not just via in-court testimony). Thus, A. and C. are correct.

6

A lawyer lacks the necessary legal knowledge to handle a specific matter for his client. The lawyer may properly proceed by taking the following action(s) (Select all that apply):

A Explaining to the client that his knowledge is limited and obtaining the client’s consent

B Consulting with a lawyer who has the necessary knowledge

C Studying the topic area and becoming proficient

D Reducing his normal fee

B & C.

A lawyer must represent his client competently. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. B. and C. are correct because the lawyer can become competent through these actions. A. and D. are wrong because they do not address the competence problem; it is still a violation to fail to represent a client with competence even if the client consents, and even if the fee is reduced.

7

A lawyer personally and substantially participated in a matter as an arbitrator. The lawyer must not subsequently represent a person in connection with the same matter as an attorney __________.


A Under any circumstances

B Unless all parties in the matter provide informed consent in writing

C Unless the party represented by the lawyer provides informed consent in writing

D Unless, while serving as an arbitrator, he did not gain any confidential information that would harm any of the parties

B Unless all parties in the matter provide informed consent in writing

A lawyer must not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, or law clerk to such a person, or as an arbitrator, unless all parties to the proceeding give informed consent in writing. Thus, B. is correct and A. and C. are wrong. D. is wrong because the rule makes no allowance for the improbable situation where an attorney-arbitrator does not learn confidential information in the course of the mediation.

8

A conflict arising out of a lawyer’s __________ an opposing party is not likely to be imputed to other attorneys at a lawyer’s law firm. (Select all that apply)

A Friendship with
B Prior representation of
C Current representation of
D Sexual relationship with

A & D.

Generally, a conflict of interest that is based on a personal interest of the disqualified lawyer is not imputed to the firm’s remaining lawyers. Thus, A. and D. are correct because friendships and sexual relationships are personal to the disqualified lawyer. B. and C. are based on former and current client conflicts, and are imputed to others at the firm. (Note, however, that the imputation may be removed by following the required screening and notice procedures.)

9

Which statements are true regarding a lawyer who represents an organization? (Select all that apply)


A The lawyer generally may also represent an employee of the organization

B The lawyer automatically represents the board of directors as well

C The lawyer must act in the best interests of the organization, even if such interests conflict with the interests of the organization’s officers

D The lawyer is required to report a violation of law to an outside authority if he has already brought it to the attention of the organization’s highest authority, and the highest authority failed to act

A & C.

A. is correct because a lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of RPC 1.7 (relating to conflicts of interest). However, B. is wrong because the lawyer does not automatically represent any of the organization’s constituents. C. is correct because it is a true statement—the lawyer must always act in the organization’s best interests, even if such interests conflict with those of the organization’s constituents. D. is wrong because a lawyer is permitted to report information outside the organization in limited circumstances, but is not obligated to do so. Rather, RPC 1.13 states that the lawyer may resign in this situation.

10

During a trial, it becomes apparent that a lawyer who represents one of the parties as trial counsel is likely to be called as a necessary witness. The lawyer will be allowed to proceed with the representation in the following situations (Select all that apply):


A The lawyer’s testimony will relate solely to an uncontested issue

B The lawyer’s testimony will concern only the nature and value of legal services rendered to the client

C The lawyer had no reason to believe that he would be a necessary witness at the time he accepted the representation

D The lawyer’s value is so distinctive to the case that withdrawal of the lawyer would cause substantial hardship to the client

A, B, & D.

If an attorney representing a client at trial is likely to be a necessary witness, the attorney should refuse employment or, if he has already been retained, should withdraw from the case. The recognized exceptions to this prohibition are: (i) where the testimony will relate solely to an uncontested issue; (ii) where the testimony will relate solely to a formality; (iii) where the testimony will concern only the nature and value of legal services rendered to the client; and (iv) where withdrawal of the lawyer would cause substantial hardship to the client because of the distinctive value of the lawyer or firm to the case. Thus, A., B., and D. are correct. C. is wrong because it is not a recognized exception to this rule.

11

Under the Rule of Professional Conduct relating to former client conflicts, a lawyer who formerly represented Former Client in a matter may not thereafter represent Current Client adverse to Former Client in __________.


A The same matter or a substantially related matter, regardless of whether Former Client consents

B The same matter or a substantially related matter, unless Former Client consents

C Any matter, unless Former Client consents

D Any matter, regardless of whether Former Client consents

B The same matter or a substantially related matter, unless Former Client consents

A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter if that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent. B. is correct because the prohibition applies to the same matter or a substantially related matter, and because the former client’s informed consent will cure the conflict.

12

Under the RPC, which event must occur before a lawyer may make an agreement with a client prospectively limiting the lawyer’s malpractice liability?


A The client must be represented by independent counsel

B The lawyer must inform the client in writing that seeking independent counsel is desirable

C None; this type of agreement is always prohibited

D None; this type of agreement is generally permitted

A The client must be represented by independent counsel

A lawyer must not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement. Thus, A. is correct and the other choices are wrong. (Note, however, that a lawyer settling an existing claim or potential claim for malpractice liability with an unrepresented client or former client meets his ethical obligation by advising the person in writing that independent counsel is desirable.)

13

If a third person intends to pay for a client’s legal fees, the RPC impose specific conditions that must be met for the lawyer to accept compensation from the third person. These conditions include (Select all that apply):


A The client must give informed consent to the arrangement

B The third person must give informed consent to the arrangement

C The lawyer must keep the third person informed of developments in the case

D The third person must not interfere with the lawyer’s professional judgment

A & D.

A lawyer must not accept compensation for representing a client from someone other than the client unless: (i) the client gives informed consent, (ii) there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship, and (iii) information relating to the representation of the client is protected as required by RPC 1.6 (relating to confidentiality of information). Thus, A. and D. are correct. B. is wrong because consent is required only from the client, not the third person. C. is wrong because the lawyer must keep the client’s information confidential; thus, the lawyer is certainly not required (and may not be allowed) to communicate all developments to the third person.

14

A lawyer __________ advance court costs and expenses of litigation __________.


A May not; unless the client is indigent

B May; to any client

C May not; under any circumstances

D May; to any client that signs a written agreement to repay the funds upon conclusion of the matter

B May; to any client

A lawyer generally must not provide financial assistance to a client in connection with pending or contemplated litigation. However, (i) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter (i.e., the lawyer and client may agree that if the client loses his case, he need not repay the funds); and (ii) a lawyer representing an indigent client can pay the client’s court costs and litigation expenses. Because the lawyer may advance such funds regardless of the client’s financial situation, B. is correct and A. and C. are wrong. D. is wrong because there is no requirement that the client sign an agreement to repay the advanced funds.

15

A lawyer wants to make an agreement giving the lawyer media rights to a movie about his client. The agreement is PERMITTED under the RPC if EITHER of the following are true: (1) the portrayal is __________; OR (2) the representation of the client __________.


A Unrelated to the representation; is ongoing

B Based on the representation; is ongoing

C Unrelated to the representation; has ended

D Based on the representation; has ended

C Unrelated to the representation; has ended

Prior to the conclusion of representation of a client, a lawyer must not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based, in substantial part, on information relating to the representation. Thus, if the portrayal is unrelated to the representation—or if the representation has ended—the agreement is not prohibited by the RPC.

16

The RPC govern conflict situations in which a lawyer enters into a business transaction with her client. Under this Rule, the following conditions must be satisfied for the lawyer to properly enter into the transaction (Select all that apply):


A The client seeks the advice of independent legal counsel

B The client gives informed consent in writing

C The terms of the transaction are fair to the client

D It is a standard commercial transaction between the lawyer and the client for products or services that the client generally markets to others

B & C.

A lawyer must not enter into a business transaction with a client unless: (i) the transaction and terms under which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (ii) the client is informed in writing of the desirability of seeking, and is given a reasonable chance to seek, the advice of independent legal counsel on the transaction; and (iii) the client understands the lawyer’s role in the transaction, including whether the lawyer is representing the client, and the client gives informed consent in writing. B. and C. are correct because they are explicitly required by the rule. A. is wrong because it is not required that the client actually seek advice from independent counsel. D. is wrong because the rule governing business transactions with clients does not apply to standard commercial transactions for products or services that the client markets to others. In that situation, there is no conflict to address.

17

Lawyer advertisements in Florida MUST NEVER do the following (Select all that apply):


A Predict specific results

B Refer to past results

C Make comparisons between lawyers

D Imply that the lawyer will engage in conduct violating the RPC

A & D.

A. and D. are correct. B. and C. are wrong because past results and comparisons are allowed if they are objectively verifiable.

18

In the course of his employment, an associate of a law firm commits an act that is a violation of the RPC. The associate’s supervising partner would be subject to discipline in the following situations (Select all that apply):


A The partner failed to make reasonable efforts (e.g., provide training) to ensure that firm employees would not commit such an act

B The partner ordered the associate to commit the act

C The partner failed to properly discipline the associate for the act after learning about it

D The partner ratified the associate’s act after learning about it

A, B, & D.

A partner in a law firm, and a lawyer who individually or together with other lawyers has comparable managerial authority, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the RPC. Thus, A. is correct. B. and D. are correct because a lawyer will be directly responsible for another lawyer’s violation of the RPC if: (i) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (ii) the lawyer is a partner or similar manager in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. However, there is no requirement that a partner or supervising lawyer discipline or otherwise punish the violating lawyer, so C. is wrong.

19

The RPC list several general prohibitions on a lawyer’s conduct, the violation of which may lead to disciplinary measures. Under these prohibitions, a lawyer who intentionally commits a __________ act is not necessarily subject to discipline.


A Fraudulent

B Criminal

C Deceitful

D Dishonest

B Criminal

RPC 8.4 specifically states that a lawyer may not engage in any conduct involving dishonesty, fraud, deceit, or misrepresentation. Thus, A., C., and D. are wrong because these acts on their own are enough to subject a lawyer to discipline. However, a lawyer is subject to discipline for a criminal act only where the act reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Some criminal violations (e.g., certain traffic violations) are considered unrelated to a lawyer’s fitness to practice.

20

Paralegals, legal assistants, law clerks, and other non lawyers may not engage in the practice of law:

(A) Unless they are working under the direct supervision of a licensed attorney.
(B) Except in areas in which they have specific legal knowledge.
(C) But may work in occupations requiring special legal knowledge.
(D) But may share fees in amounts consistent with the services they provide.

(C) But may work in occupations requiring special legal knowledge.

In no case may a non lawyer practice law. The named occupations may work in their fields related to law, with a special knowledge of law. Lawyers cannot share fees with these nonlawyers.

21

Two Loops is arrested at college for indecent exposure while skinny-dipping in the student union courtyard fountain. Her father hires Goodluck Laywer to represent Two Loops on the charge. Mr. Loops wants Two Loops to plead solo contendere, pay a fine, do some community service, and quietly resolve the matter. Two Loops wants to make a "federal" case, because she believes her constitutional rights are being trampled. Mr. Loops puts heat on Goodluck, threatening not to pay him unless Goodluck handles Two Loops according to his direction. Goodluck must:

(A) Carry out the directions of whoever pays him, in this case Mr. Loops.
(B) Give effect to the instructions of Two Loops.
(C) Exercise independent professional judgment on behalf of Two Loops.
(D) Never accept fees from Mr. Loops in this case.

(C) Exercise independent professional judgment on behalf of Two Loops.

Goodluck must exercise independent judgment in representing Two Loops, irrespective of who pays him. He cannot receive payment from Mr. Loops unless Two Loops consents. If Two Loops cannot pay, or seeks to have Goodluck pursue her defense in a manner that he feels is spurious, he should decline the representation.

22

Floyd Flunt hires Tyron Trial to represent him and his 2 minor stepdaughters in a tort action for the wrongful death of Mrs. Flunt, who was killed in an auto accident when an oncoming Greyhound bus crossed the center line and ran head-on into the Flunts' car. Mr. Flunt was driving under the influence at the time of the accident, is the guardian of his stepdaughters under his wife's will, is ultimately appointed personal representative of Mrs. Flunt's estate, and will be responsible for prosecutions of the wrongful death claim.

Tyron's contingent fee agreement with Floyt:

(A) Is outside RPC regulations because it concerns wrongful death.
(B) Cannot be executed without approval of the probate court.
(C) Would not bind the estate if Floyt was discharged as personal representative.
(D) May bind the estate and all survivors if properly executed and made in conformance with Rule 4-1.5

(D) May bind the estate and all survivors if properly executed and made in conformance with Rule 4-1.5

As personal representative, Floyt has the authority to prosecute litigation and hire attorneys for the purpose of doing so. The RPC contingent fee provisions apply to wrongful death claims. The agreement would bind the estate during Floyt's tenure as personal representative, even if he is subsequently dismissed. As long as the agreement is properly written and executed, it is binding on the estate and the survivors.

23

Floyd Flunt hires Tyron Trial to represent him and his 2 minor stepdaughters in a tort action for the wrongful death of Mrs. Flunt, who was killed in an auto accident when an oncoming Greyhound bus crossed the center line and ran head-on into the Flunts' car. Mr. Flunt was driving under the influence at the time of the accident, is the guardian of his stepdaughters under his wife's will, is ultimately appointed personal representative of Mrs. Flunt's estate, and will be responsible for prosecutions of the wrongful death claim.


Tyron's potential conflict arises out of Floyt's having been DUI, and thereby, possibly contributorily negligent. Tyron should:

(A) Ignore the conflict until it becomes apparent that he cannot reconcile it.
(B) Refuse to represent Floyt because of the distasteful situation.
(C) Disclose the conflict to Floyt and the girls, and attempt to have them all agree in writing to his continued representation.
(D) Advise all concerned of the possible problem, including the probate court.

(D) Advise all concerned of the possible problem, including the probate court.

Tyron need not resign his representation of Floyt. As personal representative, Floyt must represent all of the survivors. He may not be able to do so if the daughters have a claim against him for contributory negligence in the death of their mother. Tyron should see that the conflict is disclosed to the parties and the court, and pave the way for appointment of a guardian for the girls if need be. Tyron should not ignore the conflict or attempt to cover it.

24

In representing ∆, it comes to the attention of Lawyer that ∆ intends to falsely testify concerning her whereabouts at the time of the crime with which she is charged.

Lawyer should:

(A) Withdraw from the case based upon irreconcilable differences and thereby preserve the attorney-client privilege and the confidentiality of ∆'s disclosure.
(B) Unless the court permits withdrawal, proceed with the representation, and allow ∆ to testify without assistance or questioning from counsel.
(C) Inform ∆ of the penalties for perjury and that Lawyer will be required to disclose her false testimony to the state attorney.
(D) None of the above.

(D) None of the above.

When false evidence is offered by the client, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. Upon determining that material evidence is false, the lawyer should first seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective, the lawyer should take reasonable remedial measures. In the case of a criminal ∆, if the lawyer determines the client intends to testify falsely before trial, the lawyer may seek to withdraw. Withdrawal may not be possible, however, if trial is imminent or if no other counsel is available. Additionally, the court must grant permission to withdraw. Accordingly, (A) is not an accurate statement. (B) is incorrect because a lawyer may not permit the client to testify falsely in a narrative form unless ordered to do so by the tribunal. (C) is incorrect because the lawyer has a duty to disclose known won false statements to the court, not to the state attorney.

25

Bushwack Biglips, a New York lawyer, is admitted to practice, pro hac vice, before the circuit court in Dade County. His client has bene sued, and the litigation requires application of New York contract law under conflict of law principles. Bushwack:

(A) Need not be concerned with the FL RPC because he is only practicing pro hac vice.
(B) Need not be concerned because he is admitted to, and in good standing with, the NY Bar.
(C) Is required to know the FL RPC if the case involves an issue on ethics.
(D) Is charged with knowledge of the FL RPC.

(D) Is charged with knowledge of the FL RPC.

Every lawyer admitted to practice before a FL court is charged with knowledge of the RPC. That the appearance by Bushwack is pro hac vice does not matter, nor does the issue raised by the case.

26

Attorney is notified by his local grievance committee that a complaint has been filed against him. Attorney must:

(A) Disclose the complaint to the parents in his law firm.
(B) Respond in writing with the time required by the RPC.
(C) Request, in writing, that the proceedings be kept confidential.
(D) Provide written notice of the complaint to any judicial officer having judicial interest in the complaint.

(A) Disclose the complaint to the parents in his law firm.

Attorney must disclose the complaint and nature of charges to her law partners. There is no time for written response set out in Rule 3-7.1. If attorney wants the proceedings made public, she must request so in writing. A judicial officer with a judicial interest in the proceedings is entitled to access the proceedings, but Attorney is not required to provide written notice of them.

27

An attorney's violation of FL's RPC:

(A) Is grounds for discipline in another jurisdiction.
(B) Is conclusive proof of a similar violation of the ethics code of a sister jurisdiction.
(C) Gives rise to sanctions by the federal courts seated within FL.
(D) May be subject to review by the US Supreme Court.

(D) May be subject to review by the US Supreme Court.

Disciplinary proceedings must meet federal constitutional muster for due process, and may therefore present a federal question for review by the US Supreme Court. Every jurisdiction, state and federal, is autonomous with respect to discipline of lawyers. A violation of FL's RPC MAY give rise to discipline in another jurisdiction, and MAY be conclusive of a violation of another jurisdiction's ethics code, depending on the jurisdiction. The federal courts in FL mete out their own discipline.

28

Shonuf Good is admitted to practice in NY and CA. She is "of counsel" with two firms, one located in CA, and the other located in FL, with an office in NY. Shonuf:

(A) Cannot be "of counsel" in this situation because the firms have offices in 3 different jurisdictions.
(B) Must disclose her "of counsel" relationship in FL.
(C) Cannot disclose any political position she holds, unless it suggests a connection with a government agency.
(D) Must disclose in the letterhead of the FL firm her admissions to CA and NY.

(D) Must disclose in the letterhead of the FL firm her admissions to CA and NY.

FL requires that a firm with offices both in state and out of state list the jurisdictional limitation of lawyers not admitted in FL. Shonuf may serve of counsel to 2 firms, irrespective of office locations. The "of counsel" relation usually is disclosed to avoid omission of a material fact, but is not expressly required.

29

Pat π has charged Dan ∆ with burglary. The charges are based purely on circumstantial evidence, and Dan contends that he is innocent and that Pat π has it in for him. Dan ∆ can produce an alibi witness who can testify as to Dan's whereabouts on the evening of the crime. Dan hires Carmel Crass, a local criminal defense attorney. Dan tells Carmel that he intends to kill Pat's spouse. Under the FL RPC, Carmel:

(A) Must disclose Dan's threat if he reasonably believes disclosure will prevent the crime.
(B) May disclose Dan's threat if Dan takes a single act in furtherance of his threat.
(C) May not disclose Dan's threat unless a reasonably prudent attorney similarly situated would do so.
(D) Must disclose Dan's threat in any case.

(A) Must disclose Dan's threat if he reasonably believes disclosure will prevent the crime.

Rule 4-1.6 REQUIRES disclosure of information the attorney believes is necessary to prevent a crime, death, or serious bodily harm.

30

Which event is least likely to result in an audit of an attorney's trust account?

(A) Failure to file the annual certificate required by the FL Bar.
(B) The attorney is charged with a misdemeanor crime.
(C) The attorney is charged with a felony crime.
(D) A complaint is filed against the attorney with the bar.

(B) The attorney is charged with a misdemeanor crime.

Rule 5-1.2(d) establishes as cause for an audit items (A), (C), and (D).