Professional Responsibility MPQ Flashcards by Erica Gillespie

A prospective client met with an attorney to discuss a physical assault by her estranged husband. The estranged husband had broken into the home of the friend with whom the prospective client was staying. During this break-in, the estranged husband had assaulted her, leaving minor injuries. The attorney agreed to represent her in seeking a restraining order against her estranged husband. The next day, upon hearing about his meting, the estranged husband appeared in the attorney’s office, also seeking representation in the same matter. The husband expressed a desire for reconciliation and asked the attorney to represent him at the restraining order hearing. The attorney agreed to represent him, just as he had done with the estranged wife. Both the husband and the wife were aware that the same attorney represented them, but neither signed paperwork actually consenting to the joint representation. The wife was unhappy that her estranged husband had hired her attorney, but she felt she could not do anything about it. What sanction could attorney face because of this dual representation?

A. The attorney is not subject to any sanction because both parties verbally consented to the representation.

B. The attorney is subject to disqualification by the court from representing one or the other client, but can then proceed with representing the other, whichever one the court allows.

C. The attorney is subject to discipline, but only because he did not obtain written consent from both parties to the dual representation.

D. The attorney is subject to both discipline and to disqualification for violating the Model Rules, as the parties are directly adverse in the same proceeding.

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One the same day, an attorney agrees to represent an undocumented immigrant in a visa-revocation matter, as well as the victim in a tort action (product defect) against an automobile manufacturer. The two matters are unrelated. In the second case, the attorney anticipates that the defendant automobile manufacturer will argue that extensive federal safety regulations of automobiles, which require certain safety features and specifications, should preempt state tort law and therefore prevent a state court from adjudicating the case. on the other hand, many undocumented immigrants have relied upon federal preemption of state law in challenging onerous state penal statutes targeted at illegal immigrants. If the attorney prevails in his preemption argument in the vehicle manufacturing defect case, and on appeal creates a precedent against federal preemption of state law, the precedent would probably be unfavorable to the attorney’s other client, the undocumented immigrant. The state legislature has several bills pending that would impose criminal sanctions on landlords who lease apartments to undocumented aliens, who hire subcontractors who employ undocumented aliens. Does the fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of the other client create a conflict of interest, for which the lawyer must obtain consent from each client?

A. Yes, it creates a conflict of interest, but this type of conflict is nonconsentable because it involves questions of law, sot eh clients cannot consent to it and the attorney cannot represent both.

B. Yes, but given that it is uncertain that the lawyer will succeed in creating new precedent, the parties give informed consent in writing.

C. No, the mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.

D. No, because preemption precedent from one area of law like torts could not affect an unrelated area of law like immigration.

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Three sisters sustained injuries in a car accident last year. Because they did not have enough money to get separate attorneys, they decided to consent to using the same attorney. Before trial, the opposing party made a settlement offer. one of the sisters had sustained severe injuries, buy the other two had only superficial scrapes and bruises. Their attorney believed that the settlement offer was reasonable, and that it would be in the clients’ beset interest to accept it to avoid the costs of trial. Even so, the attorney expected the sister with more serious injuries to the resistant to a settlement offer, because she might obtain a larger judgment if the presented her case in front of a jury. If the attorney obtains consent from the other two sisters to accept the defendant’s settlement offer will he be subject to discipline if he accepts the offer without discussing it the third sister, who had the worst injuries?

A. No, because when a client retains a lawyer, he or she authorizes the lawyer to accept or reject settlement offers on his or her behalf.

B. Yes, because an attorney must inform each client about all the material terms of the settlement before accepting any settlement offer one behalf of multiple clients.

C. Yes, because an attorney must inform and obtain written consent from each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients.

D. No, because the three sisters consented to being represented by the attorney and he believed it was in their best interest as a whole.

C. Yes, because an attorney must inform and obtain written consent from each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients.

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Two successful business partners hired an attorney to help with the dissolution of the partnership, as the two partiers no longer want to work together. The attorney was very concerned about the obvious conflict of interest, but the partners insisted that they did not want to complicate matters unnecessarily by hiring separate counsel, and that they were already in complete agreement about how to divide the business. They even signed informed consent statements acknowledging and waiving the conflict. Each partner believed it would be in both of their best interests to use only ne lawyer to dissolve the business. The matter was purely transactional at this point, and it did not involve any anticipated litigation before a tribunal. One partner had already mentioned to the attorney that he might need his legal services in setting up a new business, as well as handling some estate planning issues for him. The attorney still believed that dual representation was not a good idea, given the complexity of the business, and the debatable future value of some patents, goodwill, and other intellectual property involved, and because one partner contributed a much larger share of the start-up funds years before. The partner who motioned hiring the attorney to do estate-planning work wanted the dissolution to include assigning his proceeds from the business to his heirs. The attorney proceeded with the dual representation and the dissolution appeared to proceed smoothly. Is the attorney subject to discipline for representing both partners?

A. Yes, because the attorney did not have a reasonable belief that he would be able to provide competent and diligent representation to each affected client.

B. Yes, because the facts do not mention whether they split the legal fees evenly, and one of them has mentioned giving the attorney some business in the future.

C. No, because the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

D. No, because it appears on these facts that there will be no assets in dispute at all, so the theoretical conflict of interest would have no bearing on their case.

A. Yes, because the attorney did not have a reasonable belief that he would be able to provide competent and diligent representation to each affected client.

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A wealthy heiress hired an attorney to represent her and her family in a complex federal case involving the family business and charges of securities fraud and racketeering. Early in the representation, the attorney and the client start dating and become sexually involved, to the consternation of the rest of the family. The client and her attorney rationalize the relationship by saying that they each have “needs” that their new romantic partner meets, and they have even discussed marriage as an eventuality. Is the attorney subject to discipline for this relationship?

A. No, the Constitution does not allow a state bar or the judiciary to interfere in private matters such as a lawyer’s consensual sexual relationships.

B. Yes, the lawyer is representing the other family members as well, and they disapprove of the relationship at this time; if they approved of the relationship, it would be fine.

C. No, because it appears this will be a long-term or permanent relationship, perhaps leading to marriage, so there is very little risk of the lawyer exploiting his client or the lawyer having clouded judgment.

D. Yes, unless the sexual relationship, the lawyer absolutely cannot represent a client with whom he has such a relationship.

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An attorney worked at Big Firm for five years, and she specialized in real estate. During the last three years, the attorney has worked mostly on Conglomerate Corporation’s properties and disputes that arose related to them. Shortly before leaving Big Firm, the attorney handled a matter for Conglomerate Corporation related to the construction of a new apartment complex. The attorney now works at Boutique Firm, and a prospective new client explains during an initial consultation that she needs to sue Conglomerate Corporation over a disputed right of way through the very property that holds the new apartment complex – one of the last matters that she handled for Conglomerate. Would it be proper for the attorney to represent the prospective client in this matter against Conglomerate Corporation?

A. The attorney may represent the new prospective client only if Conglomerate Corporation consents to this in writing.

B. The attorney may not represent the new prospective client in the same or substantially the same matter even if the former client consents in writing.

C. The attorney may not represent the new prospective client in any matter related to Conglomerate Corporation, unless the former client consents in writing.

D. The attorney may represent the new prospective client because she no longer works for Big Firm, which represented Conglomerate Corporation.

A. The attorney may represent the new prospective client only if Conglomerate Corporation consents to this in writing.

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An attorney began her career as a prosecutor at the District Attorney’s Office. During her tenure as a prosecutor, she brought charges against an individual suspected of sending ricin, a deadly toxin, in an envelope to a prominent politician, apparently in an unsuccessful attempt to assassinate the public official. The jury found the evidence to be too attenuated, and it acquitted the defendant. Shortly thereafter, another person, who was a member of a terrorist organization, confessed to sending the ricin and provided extensive evidence of his plot to kill the politician to make a political statement. The attorney resigned from the District Attorney’s Office, partly out of humiliation over this case, and went into private practice. Eighteen months later, the accused individual decides to sue the government over wrongful arrest, slander, libel, and wrongful prosecution over the case in which he obtained an acquittal. The attorney feels that her superiors at the D.A.’s office had pressured her to press charges in order to satisfy the public uproar over the ricin letters, despite having scanty evidence that the accused individual was actually guilty. The attorney offers to represent the accused individual in his lawsuit against the government, partly to make amends or atone for her role in what she now views as an abuse of government power and a great injustice. Would it be proper for the attorney to handle this case, given her good intentions?

A. Yes, because the test for determining if an improper conflict of interest exists between former clients and a new client is the lawyer’s subjective motivations in undertaking the new representation, and in this instance, the attorney is merely trying to make amends for her past mistakes.

B. Yes, because the attorney has a duty to repudiate her previous wrongful actions, and her representation of the individual will send a strong message to other prosecutors, which in turn serves the public interest.

C. No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent legal action against the government concerning the same transaction.

D. No, because a prosecutor cannot ethically “switch sides” and state representing criminal defendants in public practice, regardless of whether the same individuals are involved as clients.

C. No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent legal action against the government concerning the same transaction.

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An attorney worked for Big Firm in their intellectual property department, specializing in patent applications and patent enforcement, as well as some trademark disputes for clients. Unbeknownst to the attorney, the regular litigation department at Big Firm undertook representation of a Trucking Company in defending against a personal injury lawsuit over a roadway accident involving one of the trucks. The attorney worked in the Washington, D.C. office of Big Firm, near the United States Patent and Trademark Office, and the litigators handling the case the truck accident are in the Firm’s Dallas office. Each office of Big Firm has its own local computer network for sharing documents and files between the lawyers there. It is possible for lawyers at Big Firm to access the networks of other satellite offices, however, with a special login that most lawyers never use. The attorney has never accessed the files of the Dallas office except for one trademark case four years ago. The attorney did not make partner at Big Firm, so he lift and went to work for a small plaintiff’s firm in Kansas. One of the attorney’s first case assignments was the same truck accident case in which Big Firm was defending Trucking Company; the attorney’s new firm represents Plaintiff in the case. The attorney was not aware of the case or that Big Firm represented Trucking Company until the new firm assigned him to the case as second chair on the litigation. Is the attorney subject to disqualification in this matter?

A. Yes, because even though the attorney did not have actual knowledge of confidential information about the trucking company, he had the ability to access the files if he had used a special login while he was at Big Firm, and this creates the appearance of impropriety.

B. Yes, because the attorney’s work in the patent enforcement division of Big Firm gave him some exposure to Big Firm’s behind-the-scenes approach to litigation generally, as well as familiarity with Big Firm’s litigators, thus providing the attorney with an unfair advantage, therefore both the attorney and the other lawyers in the new firm would be subject to disqualification.

C. No, because the attorney now works for a firm in Kansas, and both offices of Big Firm mentioned were in other states, where many of the lawyers would not have licenses to practice law in Kansas, so the attorney would be subject to disqualification, but not the other lawyers in the new firm.

D. No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm are disqualified from representing another client in the same or related matter even though the interests of the two clients conflict.

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An attorney represented a man twenty years ago in a divorce with the client’s first wife. The client was a well-known local celebrity, a retired professional athlete who became a semi-successful actor and an outspoken advocate of a radical political cause. Recently, former client’s third wife approached the same attorney seeking representation in obtaining a divorce from the former client. There are no children from the marriage – their children from previous marriages are now adults – and the distribution of assets will follow the terms fo a carefully drafted prenuptial agreement between the former client and his third wife. The former client (that is, the husband) long ago provided written informed consent for future conflicts of interest if the attorney represented another party with adverse interests. The attorney does not believe that any confidential information learned from representing the husband twenty year ago in this first divorce will be relevant to the pending third divorce. On the other hand, there is regular media coverage of the husband’s trysts and one-and-off sexual relationships with various actresses and female socialites in the area, and marital infidelity could trigger certain exception clauses in the prenuptial agreement. Would it be proper for the attorney to use the information about husband’s recent indiscretions in representing the third wife?

A. Yes, if the husband’s new lawyer provides written informed consent to the use of the information in the divorce proceeding.

B. Yes, the fact that a lawyer has once served a client does not preclude when later representing another client.

C. No, not if the attorney learned confidential information about the husband having a pattern of marital infidelity during his prior representation of husband.

D. No, the fact that there is a prenuptial agreement with exceptions triggered by marital infidelity should preclude the attorney from using such information.

B. Yes, the fact that a lawyer has once served a client does not preclude when later representing another client.

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An attorney worked for a small plaintiffs’ firm in Dallas, Texas. The firm undertook the representation of the victim, who suffered severe injuries in a traffic accident with a large truck, allegedly due to the truck driver’s negligence. The attorney was not involve din the case at all; another associate at the firm represented the victim in the lawsuit. Big Firm, which has offices in several states, is defending the Trucking Company in the personal injury lawsuit brought by the victim. The attorney’s small firm has a single office and a computer network that allows the five lawyers there to share documents and files from all their cases with each other. Any lawyer in the firm could access all of the other lawyers’ documents, which saved time as lawyer could copy and paste from various motions and pleadings that other lawyers had drafted previously on unrelated matters. Every Thursday afternoon, there was a mandatory meeting of the lawyers in the firm, in which they discussed whether to accept the cases of new potential clients, and they discussed how the pending litigation of each lawyer was proceeding. The lawyers exchanged advice and suggestions for one another’s cases. the attorney did not make partner at the small firm, so he left and went to the satellite office of Big Firm instead. Big Firm assigned the attorney to work on the trucking company case, the same case in which his previous firm represented the opposing party. The attorney had not worked previously on the case and had heard about it only in passing during the weekly litigation meetings at his previous firm, and now remembers almost nothing from the conversations. Should the attorney be subject to disqualification from defending the trucking company?

A. Yes, if a lawyer has general access to files of all clients of a law firm and regularly participates in discussions of their affairs, it creates an inference that such a lawyer in fact is privy to all information about all the firm’s clients, and the burden of proof should rest upon the firm whose disqualification is sought.

B. Yes, because the attorney is familiar with all litigators at the firm of opposing counsel and knows each of their strengths and weaknesses as litigators and what strategies they like to use, which would give the attorney an unfair advantage in any case in which they serve as opposing counsel.

C. No, if a lawyer while one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even through the interests of the two clients conflict.

D. No, because the attorney now works for a firm in Kansas and the opposing counsel has its office only in Texas, so the attorney would not be subject to disqualification.

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An attorney works for a firm. She also describes herself as an outspoken advocate for the rights of the unborn children, that is, she passionately favors legal restrictions on abortion. A local abortion clinic asks the firm to represent it in litigation over recent zoning measures that would significantly limit its hours of operation and therefore the number of clients the clinic could accept. The firm agrees tot eh representation. The attorney firmly refuses to have any part in the representation, and though no formal screening measures are in place, everyone else in the firm avoids discussing the case with her or around her because they are afraid of receiving another lecture about the wrongfulness of abortion. Early in litigation, the judge considers disqualifying the firm because it employs the attorney, who has a reputation in the community for her advocacy against legalized abortion. Neither the clinic nor the opposing party (the municipal zoning authority) provided written consent to a conflict of interest. Should the firm be subject to disqualification in this case?

A. Yes, because the firm did not implement formal screening measures to ensure that the attorney receives no confidential information about the case and cannot influence the other lawyers working on the case.

B. Yes, because the firm did not obtain informed written consent from both parties to the potential conflict of interest.

C. No, the firm should not be disqualified where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm.

D. No, because preserving women’s access to legalized abortion is such an important fundamental right that it would be improper to limit the abortion clinic’s options for representation in the matter, and other firms may also have conflicts of interest that would preclude representation

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Big Law Firm represented Conglomerate Corporation, but the primary lawyer who handled Conglomerate’s matters left Big Law Firm, and Conglomerate Corporation followed the lawyer to his new firm for further representation on other matters. Some time later, Giant Company consulted with Big Law Firm about legal representation that would be materially adverse to Conglomerate Corporation. A partner at Big Law Firm accepts Giant Company’s new case. Would it be improper for the partner or other lawyers still working for Big Law Firm to provide representation to Giant Company in a lawsuit against Conglomerate Corporation, if the new matter has no substantial relationship to Conglomerate’s previous legal matters?

A. Yes, attorneys are imputed with knowledge of current or previous members of the firm, and attorneys with imputed knowledge shall not accept cases of potential clients whose interests would be materially adverse to those of a prior client of the firm.

B. Yes, an attorney shall obtain the informed consent, confirmed in writing, of a client of a prior attorney’s clients if the attorney is going to represent a different client with materially adverse interests.

C. No, when a lawyer leaves a law firm, the rules regarding conflicts of interest and imputation do not apply.

D. No, prior lawyers’ knowledge is not imputed unless the matter is the same or substantially related and another lawyer in the firm has information that is material to the matter.

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An attorney works for a firm where another lawyer is representing the defendant in a personal injury lawsuit. The other lawyer has represented the defendant for a long time on unrelated, non-litigation matters, but the personal injury lawsuit is a new case. The victim, the plaintiff int eh same personal injury lawsuit, was a college classmate of the attorney and he asks the attorney to represent him in the litigation. The attorney has not learned any confidential information yet about the defendant form his fellow associate at the firm, nor has the attorney learned any confidential information from the victim during their preliminary consultation. The firm decides to undertake the representation of the victim as well. the firm will carefully screen the attorney and lawyer from one another, forbidding them to discuss the case with each other or anyone else in the office, and ensuring that they do not have access to each other’s files for the case. in addition, neither lawyer will receive a bonus from the fees received for this litigation. Under the Rules of Professional Conduct, is it proper for the attorney to represent the victim, given these circumstances?

A. Yes, as long as the firm provides notice to the defendant and the victim about the specific screening procedures it has in place, and gives periodic certifications of compliance with the screening procedures.

B. Yes, as long as both the clients provide written informed consent to the conflict of interest, after receiving a detailed explanation of the problems with common representation, and neither party has its fees paid by a third party.

C. No, because the Rules of Professional Conduct impute the conflict of the other lawyer to the attorney, and screening procedures do not apply to conflicts between current clients.

D. No, unless the attorney has already represented the victim in previous unrelated matters while working at another law firm, and joined the new law firm only recently.

C. No, because the Rules of Professional Conduct impute the conflict of the other lawyer to the attorney, and screening procedures do not apply to conflicts between current clients.

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An attorney is a partner in a law firm, and owns $100,000 worth of stock in Conglomerate Corporation, the named defendant in a new antitrust suit. The attorney’s total compensation from the firm is around $115 million per year, including bonuses, and his net worth is around $500 million. His home is worth about $7 million and the attorney inherited it, so the property is unencumbered by any mortgage or liens. The attorney works in a specialized area of law at the firm and does not have much interaction with the other lawyers, except at parties and occasional partners’ meetings. Another lawyer in the firm seeks to represent the plaintiffs in the antitrust action against Conglomerate Corporation, which is not a client of the firm. Would it be proper for the firm to represent the plaintiffs in litigation against Conglomerate Corporation?

A. Yes, so long as the attorney is not involved in the representation, there will be no imputation of the attorney’s conflict of interest to the other lawyers in the firm, because it is the attorney’s personal interest and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

B. Yes, so long as the plaintiffs provide written informed consent to the potential conflict of interest, and the firm carefully screens the other lawyer representing them from the rest of the firm.

C. No, because the personal interest of the firm’s managing partner in Conglomerate is so great, relative to his earnings and assets, that there is a significant risk of materially limiting the representation of the plaintiffs in their cause of action against Conglomerate.

D. No, because it is a nonconsentable conflict of interest for the firm to represent both adverse parties in litigation.

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A legal secretary in a law firm is married to the owner of an independent retail-clothing store. The firm undertakes representation of a clothing wholesaler, who is suing the same independent clothing store over nonpayment for shipments in merchandise. The legal secretary’s husband hires another firm to represent his store in the lawsuit, and his lawyer asks the court to disqualify the legal secretary’s firm because of her position there. Should the firm be subject to disqualification?

A. Yes, because the conflict of interest is too great where the defendant’s spouse works for opposing counsel’s firm.

B. Yes, because the lawsuit involves nonpayment for a shipment of merchandise, and the legal secretary indirectly benefitted from her husband keeping these unpaid funds.

C. No, if the firm screens the legal secretary from any involvement in the case or from access to any confidential information about the case.

D. No, because the legal secretary is not a lawyer, so the Rules of Professional Conduct do not apply to her personal conflicts of interest.

C. No, if the firm screens the legal secretary from any involvement in the case or from access to any confidential information about the case.

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An attorney represented Small Business Associates while working at Big Firm, her first law firm after law school. When the attorney did not make partner at the firm, she ended her employment there and started her own firm. The attorney took some of her clients with her, including Small Business Associates, whom she continues to represent. Big Firm no longer has Small Business Associates as a client. Big Firm then agrees to represent Conglomerate Corporation in a trademark infringement case against Small Business Associates, the first such case that the latter has ever faced. Can Big Firm represent Conglomerate in a case against its former client, Small Business Associates?

A. Yes, as long as the matter is not the same or substantially related to that in which the attorney formerly represented the client; and no lawyer remaining in the firm has confidential information about Small Business Associates from when the attorney represented them at that firm.

B. Yes, because otherwise the disqualification of the firm would constitute an agreement not to provide representation not specific clients in the future, which would violate the Rules of Professional Conduct.

C. No, unless the attorney’s new firm screens her from the litigation according to the procedures set forth in the Rules of Professional Conduct.

D. No, unless Conglomerate provides written informed consent to the potential conflict of interest.

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Years ago, as a law student, an attorney worked on a case for the client during a law firm internship. Now, the attorney’s firm is representing a defendant in a lawsuit in which the client is the plaintiff. The client’s new lawyer moves to disqualify the attorney’s firm from the representation when it learns that the attorney worked for another firm on behalf of the client with the attorney was still a law student. Is the attorneys’ firm subject to disqualification in this case?

A. Yes, because when lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so.

B. Yes, unless both parties provided written informed consent and waived the conflict of interest at the beginning of representation.

C. No, as long as the firm screens the attorney from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the non-lawyers and the firm have a legal duty to protect.

D. No, because the attorney was not yet a lawyer during the law student internship and therefore did not actually provide legal representation for the client in the previous matter.

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An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney’s first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client’s challenge, but instead worked exclusive on enforcement litigation matters. Is the attorney subject to disqualification in the client’s matter against the attorney’s former employer?

A. Yes, because Big Firm gave the attorney an unreasonably large salary increase for leaving her public service position and joining Big Firm in the private sector, which creates a conflict of interest.

B. Yes, unless the general government agency is willing to provide written informed consent to the attorney’s representation in the case.

C. No, because the attorney did not participate personally and substantially in the matter as a public officer or employee.

D. No, because the case involves a constitutional challenge to the validity of a regulation, not the financial interests of the client or government as would be recognized if the case involved fines, fees, or penalties.

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C. No, because the attorney did not participate personally and substantially in the matter as a public officer or employee.

An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney’s first assigned cases at Bif Firm was a new action by the client against the same government agency for which the attorney had previously worked, defending against an enforcement action that the attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client’s challenge, but instead worked exclusively on enforcement litigation matters. The government agency gives informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client’s matter against the attorney’s former employer?

A. Yes, because allowing Big Firm to give government lawyers an unreasonably large salary increase for leaving her public service position and joining Big Firm in the private sector creates a conflict of interest for all lawyers in government service.

B. Yes, because the attorney participated personally and substantially in the matter as a public officer or employee.

C. No, because the case involves a constitutional challenge to the validity of a regulation, and the attorney was not personally and substantially involved in the drafting or promulgation of the regulation.

D. No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

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D. No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired attorney for a substantially higher salary, and the attorney accepted the position and left his government position. One of the attorney’s first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, defending against an enforcement action that the attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client’s challenge, but instead worked exclusively on enforcement litigation matters. The government agency refuses to consent to the attorney representing the client, who is the adverse party to the agency, in this matter, and seeks to disqualify Big Firm from representing the client. Is Big Firm subject to disqualification in the client’s matter against the attorney’s former employer?

A. Yes, because allowing Big Firm to give government lawyers an unreasonably large salary increase for leaving his public service position and joining Big Firm in the private sector creates a conflict of interest for all lawyers in government service.

B. Yes, because the attorney participated personally and substantially in the matter as a public officer or employee, and cannot recuse himself from representing the client, and the appropriate government agency gives its informed consent, confirmed in writing, to the representation.

C. No, so long as Big Firm has policies and procedures in effect to supervise the attorney’s work closely enough to ensure compliance with the Rules of Professional Conduct.

D. No, so long as Big Firm screens the attorney in time from any participation in the matter and provides the agency with prompt written notice about the screening measures in effect.

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D. No, so long as Big Firm screens the attorney in time from any participation in the matter and provides the agency with prompt written notice about the screening measures in effect.

An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a much higher salary, and the attorney accepted the position and left her government position. One of the attorney’s first assigned cases at Big Firm was a new action by the client against Conglomerate Corporation. The attorney had worked on an enforcement against Conglomerate Corporation and learned confidential government information about the entity during the litigation. The government agency gives its informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client’s matter against the attorney’s former employer?

A. Yes, the attorney has confidential information about a person acquired while working for the government agency, and therefore may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

B. No, because the attorney did not previously represent the client or Conglomerate Corporation, so there is not attorney-client privilege or conflict of loyalties here between two clients that the attorney is representing or has represented.

C. No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

D. No, as long as Big Firm has policies and procedures in effect to supervise the attorney’s work closely enough to ensure compliance with the Rules of Professional Conduct, including training sessions about the conflict-of-interest rules.

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An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a much higher salary, and the attorney accepted the position and left her government position. One of the attorney’s first assigned cases at Big Firm was a new action by the client against Conglomerate Corporation. The attorney had worked on an enforcement against Conglomerate Corporation and had learned confidential government information about the entity during the litigation, but the attorney does not know, and has no reason to know, that the information is confidential government information. The attorney is under the reasonable impression that all the information she learned about Conglomerate Corporation is now public information. The government agency gave its informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client’s matter against the attorney’s former employer?

A. Yes, the attorney has confidential government information about a person acquired while working for the government agency and therefore may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to material disadvantage of that person.

B. No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

C. No, because the attorney does not have confidential government information about Conglomerate that she knows is confidential government information.

D. Yes, because the attorney did not previously represent the client or Conglomerate Corporation, so there is no attorney-client privilege or conflict of loyalties here between the two clients that the attorney is representing or has represented.

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C. No, because the attorney does not have confidential government information about Conglomerate that she knows is confidential government information.

An attorney worked for several years for a federal government agency in regulatory enforcement. The attorney was involved in several enforcement matters against Conglomerate Corporation. Big Firm has always represented Conglomerate Corporation in all its litigation and regulatory compliance matters. The attorney made a good impression on the Big Firm partners when serving as opposing counsel in the same litigation. At the end of a deposition of Conglomerate Corporation’s executives during the discovery phase of an enforcement proceeding, Big Firm partners approached the attorney privately and asked if the attorney would be interested in leaving the agency for a position at Big Firm. The attorney explained that they would have to match his current salary at the government agency for him to consider the proposal. Big Firm then scheduled an employment interview with the attorney, at the end of which they offered to double his salary if he left the agency and accepted a position at Big Firm. The attorney decided to postpone deciding until the pending agency enforcement matters against Big Firm’s client were complete, in order to avoid the appearance of a conflict of interest. the matters dragged on for another year, however, and Big Firm eventually withdrew its offer. Is the attorney subject to discipline?

A. No, because the attorney decided to postpone deciding until the pending agency enforcement matters against Big Firm’s client were complete, in order to avoid the appearance of a conflict of interest.

B. No, because Big Firm eventually withdrew its offer, and the attorney never actually went to work for Big Firm.

C. Yes, because a lawyer currently serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially.

D. Yes, because Big Firm offered to double the attorney’s salary instead of merely matching his current government salary, which creates a substantial conflict of interest of the attorney in any pending or future matters.

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An attorney spent several years working for the state Office of the Attorney General in its environmental litigation division. While there, the attorney began a case against a scrap metal facility for burying toxic materials on its grounds. The attorney then left government service and went to work for Big Firm. There, the attorney began representing a group of neighboring landowners in a lawsuit against the same scrap metal facility over the same burying of toxic material, as it had polluted the groundwater and had migrated to adjacent properties underground. Is it proper for the attorney to represent these plaintiffs?

A. Yes, so long as the new clients provide written informed consent.

B. Yes, because the new clients’ interests match those of attorney’s government employer, and there is no indication of adverse interests being present between them.

C. No, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer left government service, except when authorized to do so by the government agency.

D. No, because the attorney is using the prestige of having worked in government service to attract new clients, which creates a conflict between the attorney’s self-interest and the public interest represented by the government agency.

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An attorney, who often serves as a court-appointed mediator, was appointed to mediate the divorce case between a husband and wife. The case settled in mediation and the divorce was finalized soon after. A year later, the husband sought to retain the attorney to represent him in a modification suit against his wife. The attorney accepted the case and sent a letter to the wife advising her that the attorney had been retained by the former husband to represent him in a modification suit. Are the attorney’s actions proper? A. Yes, the attorney who previously served as a third-party neutral may represent any party in a suit connected to the previous matter if the attorney provides proper notice to the other party in writing. B. Yes, an attorney who previously served as a third-party neutral may represent any party in a suit connected to the previous matter if the previous case occurred more than one year before the third-party neutral began representation of one of the parties. C. No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter. D. No, an attorney who previously served as a third-party neutral shall not represent any party in a suit connected with the previous matter.

C. No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter.

An attorney was a state hearing officer for the Workers Compensation Board. The attorney left that position and opened his own law firm, primarily representing parties before the State Workers Compensation Board. One of the cases is the final rehearing of a case in which the attorney had presided as hearing officer at an initial preliminary hearing and ruled on preliminary matters, but the attorney left the Board without issuing any final decision in the case and the Board transferred the matter to another hearing officer. The attorney represents the injured worker, the client. All parties involved give informed consent, confirmed in writing, for the attorney to represent the client. Is the attorney subject to discipline for representing the client in this matter? A. Yes, because a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally in a substantial way as a judge or other adjudicative officer. B. Yes, because the type of conflict of interest described here is nonconsentable, so it is irrelevant that all the parties provided informed written consent. C. No, because all the parties provided informed written consent to the representation, despite the obvious conflicts of interest at stake. D. No, the conflict-of-interest rules do not apply merely to administrative hearing officers who are not actual judges, arbitrators, or mediators.

C. No, because all the parties provided informed written consent to the representation, despite the obvious conflicts of interest at stake.

An attorney spent several years working on the state intermediate appellate court as one of its nine justices in a state in which such judges run for election in the general elections every four years. When the attorney ran for re-election, she lost and needed to return to private practice. The client wants the attorney to represent her in her appeal of a state trial verdict. The case previously came up on appeal before the state intermediate appellate court, but the attorney was not on the panel that decided the case. The state Supreme Court subsequently reversed the decisions of both the appellate court and the trial court and remanded the case for a new trial. The new trial resulted in an unfavorable verdict for the client, so she wants to appeal the caSe again. Would it be proper for the attorney to represent her in this matter? A. No, because the appeal will come before the very court for which the attorney worked as a judge, and the panel could income some of the attorney’s former colleagues. B. No, because the state Supreme Court already reversed the decision of the state intermediate appellate court, so it is improper for the client to appeal the remanded case back to the same state intermediate appellate court again, as this could thwart the intentions of the Supreme Court. C. Yes, because it was not the judge’s fault that the state Supreme Court reversed the previous appellate decision, making a new trial and subsequent appeals necessary, and that the opposing party has not settled the case in the meantime. D. Yes, because a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a matter pending in the court, but in which the former judge did not participate.

D. Yes, because a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a matter pending in the court, but in which the former judge did not participate.

An attorney was a judge for several years. Near the end of her tenure as a judge, she functioned in the role of the chief administrative judge in that court, assigning cases to the other judges and supervising their work, and had only a limited docket of her own trials. The attorney then left the bench and opened her own law practice. The attorney agrees to represent the client in a matter in the same courthouse where the attorney formerly served as a judge. The attorney even remembers the case, but only the names of the parties and the nature of the action, because she assigned it to the trial judge who currently has the case on his docket, but the attorney had no other involvement in the matter. The client’s previous lawyer in the matter was subject to disqualification at the motion of the opposing party due to a conflict of interest. is it proper for the attorney to represent the client in this matter? A. Yes, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. B. Yes, as long as the parties in the matter provide informed consent, confirmed in writing, to the representation. C. No, because she previously supervised the trial judge hearing the case and even assigned the case to that judge. D. No, because the client’s previous lawyer was already subject to disqualification due to a conflict of interest in the matter.

A. Yes, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits.

An attorney was a judge but has left that job and joined Big Firm. Another lawyer at Big Firm represents the client in a case on the docket at the same court where the attorney worked as a judge. In fact, as a judge, the attorney ruled on some pretrial motions in the case, mostly evidentiary motions. The firm has screening measures in place to screen the attorney from any participation in the matter. The attorney will receive no part of the fee from the matter, and timely notice went to all parties about the screening measures in place. The other parties, however, did not provide informed written consent to Big Firm’s representation of the client. Is it proper for the other lawyer at Big Firm to continue representing the client in this matter? A. No, because a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, and if a lawyer is disqualified, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter. B. No, because a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, and the other parties did not provide informed consent, confirmed in writing to the representation. C. Yes, so long as Big Firm also provides timely notice to the appropriate tribunal as well, so that the tribunal may ascertain compliance with screening measures. D. Yes, so long as the attorney is not receiving a salary or partnership share established by prior independent agreement.

C. Yes, so long as Big Firm also provides timely notice to the appropriate tribunal as well, so that the tribunal may ascertain compliance with screening measures.

An attorney used to work at Big Firm, and three years ago moved laterally to Medium Firm. One of the attorney’s former colleagues at Big Firm also left and started a solo practice. While working at Big Firm, the solo received an assignment of literary rights from one of his clients about the client’s high-profile case, immediately after the end of the case and the conclusion of the representation. The client also assigned any remaining literary rights to Kingpin Publishers in exchange for a hefty payment. The solo is now suing Kingpin publishers to establish exclusive literary rights in the story. The first attorney’s current firm, Medium Firm, represents Kingpin Publishers, and the solo represents himself. Another publisher is interested in acquiring the solo’s book or movie script, and is funding the litigation expenses for the solo, even though it is not a client and does not yet have any ownership rights over the story. The case that gave rise to the literary rights occurred while both solo and the first attorney were working together at Big Firm. The attorney performed some preliminary work on the case – reviewing and indexing a single deposition transcript before the client’s trial – but the lawyer who is now the solo represented the client at trial. A paralegal at Big Firm is currently engaged to an editor at Kingpin Publishers, and the two are already living together. The attorney at Medium Firm, who is representing Kingpin Publishers, is in a sexual relationship with another lawyer at his own firm, and both are working in some capacity on the case. executives at Kingpin Publishers have informed the first attorney that if his firm wins the case, they will hire Medium Firm for all future legal work, which could be very lucrative in the long term. The solo has just filed a motion to disqualify the first attorney and rest of Medium Firm from representing Kingpin Publishers in the case, alleging simply that there is a conflict of interest. Does Medium Firm have a disqualifying conflict of interest in representing Kingpin Publishers in this particular litigation? A. Yes, because the firm’s attorney worked on the case that gave rise to this litigation, and because the solo took literary rights in the client’s case. B. Yes, because the firm’s attorney is in a sexual relationship with another lawyer working on the case, and because a third party without a true stake in the case is paying for the solo’s legal fees. C. No, as long as Medium Firm screens the attorney from the case involving the literary rights and obtains consent from the opposing party. D. No, because neither the attorney nor Medium Firm have a disqualifying conflict of interest in the case.

D. No, because neither the attorney nor Medium Firm have a disqualifying conflict of interest in the case.

A college sophomore is facing criminal charges related to a drunk driving accident the previous night. To his great relief, the student’s parents hire an attorney as defense counsel for their son, agreeing to cover all fees and expenses. The criminal charges in this case allow for jail time or hefty fines as potential punishments. The prosecution offers a plea bargain – a $2,000 fine, a few hours of community service, and six months’ probation, but no jail time. The student, who is the defendant, is thrilled, but his parents insist that the attorney decline the plea bargain and go to trial, which the attorney believes will result in a conviction and a short jail sentence. The parents believe a short jail term will be good for their son and teach him a lesson, and paying the $2,000 fine on top of the attorney’s fees will force them to forego their vacation plans that year. A loud argument ensues in the conference room between the client and his parents over the best course of action. How should the attorney proceed? A. The attorney should represent the wishes of the parents, as they retained him for his services, and they are paying his fees. B. The attorney should follow his own judgment about what would be the best result in this case, given that there is a disagreement between the party he represents and the party paying his fees. C. The attorney must follow the decision of the defendant, who is his real client, and accept the plea; he should have explained to the parents in advance that they could not control the case even if they paid his fees. D. The attorney has a duty to both the student-defendant and his parents as joint clients, and he must wait until they reach an agreement about how to proceed.

C. The attorney must follow the decision of the defendant, who is his real client, and accept the plea; he should have explained to the parents in advance that they could not control the case even if they paid his fees.

An attorney serves as the lawyer for a corporation and is a member of its board of directors. Which of the following is true regarding this situation? a) The attorney is subject to discipline, because the responsibilities of the two roles may conflict, as when Attorney must advise the corporation in matters involving actions of the directors, and there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment b) The attorney must limit his legal representation of the corporation to transactional and regulatory matters, and cannot represent the corporation in litigation against adverse parties, as there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment c) The attorney must have the final word on decisions of the board when he is present as a director, because Attorney bears responsibility for the decisions in the form of potential legal malpractice liability, which does not apply to the other directors who are not lawyers. d) The attorney must advise the other board members that in some circumstances, matters they discuss at board meetings while the attorney is there as a fellow director would not be protected by the attorney-client privilege in later litigation; and that conflict of interest considerations might require the attorney’s recusal as a director, or might require the attorney to decline representation of the corporation in a matter.

d) The attorney must advise the other board members that in some circumstances, matters they discuss at board meetings while the attorney is there as a fellow director would not be protected by the attorney-client privilege in later litigation; and that conflict of interest considerations might require the attorney’s recusal as a director, or might require the attorney to decline representation of the corporation in a matter.

A municipal election for a seat on the city council was remarkably close one year, resulting in a run-off election that was ever closer. Both candidates claimed victory, and each accused the opposing candidate of voter fraud and violations of various election rules. There is potential for litigation if the two cannot agree as to a winner in the election, with one or the other conceding. A certain attorney is a prominent lawyer in the community and has previously represented each candidate in various legal matters. Both candidates would like to hire the attorney to represent them in negotiating a resolution to the election. Each candidate fully understands their adverse interests and the potential conflicts of interest for the attorney, but each is willing to provide written informed consent to have the attorney represent them both in facilitating the negotiations. May the attorney represent both candidates in this negotiation? a) Yes, common representation is permissible where the clients’ interests align overall, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis. b) Yes, because conflicts of interest rules do not apply outside the litigation arena; the parties here are not litigating, and no litigation is pending, but instead are merely hiring the attorney to facilitate negotiations of an issue where the two sides are not far apart. c) No, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, even in a negotiation. d) No, because the fact that the attorney has represented each of the parties in the past means that he would possess confidential information that would make mutual representation nonconsentable in this case.

c) No, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, even in a negotiation.

Two sisters are co-tenants of a house that they inherited from their father. They want to sell the house and hire an attorney to handle the real estate transaction. This attorney explains the potential for conflicts of interest in detail, and each sister readily agrees to provide written informed consent in the form of a waiver of future conflicts of interest. After a prolonged period, they finally find a buyer who is interested in the house, but the buyer wants to impose several onerous conditions on the purchase and engages in unreasonably protracted negotiations over the purchase price. The sisters themselves cannot agree on whether to accept any of the buyer’s proposals, further dooming the negotiations. Eventually, one sister becomes frustrated with the attorney over the prolonged, hitherto unsuccessful negotiations, and fires the attorney. The other sister wants the attorney to continue the representation. Regarding the sister who seeks to discharge the attorney, may she do so? a) Yes, but only if discharging the lawyer will not be prejudicial to the interests of the buyer, who has already invested a lot of time and energy in the negotiations to purchase the property. b) Yes, each client in the common representation has the right to discharge the lawyer as stated in Rules of Professional Conduct and the accompanying Comments. c) No, because she signed a waiver of future conflicts of interest, which is binding and safeguards the attorney against premature discharge. d) No, because by agreeing to common representation with her sister, she implicitly agreed that discharging the attorney would require assent of both sisters, as they are both clients.

b) Yes, each client in the common representation has the right to discharge the lawyer as stated in Rules of Professional Conduct and the accompanying Comments.

Three co-owners of a successful startup business hire a certain attorney to help with working out the financial reorganization of their enterprise. The attorney seeks to resolve potentially adverse interests by developing the parties' mutual interests. In assenting to represent all the parties as clients simultaneously, the attorney agrees to adjust the relationship between clients on an amicable and mutually advantageous basis. The clients each provide written consent to the potential conflicts of interest. Is it proper for the attorney to represent three clients with potentially adverse interests in a negotiated transaction? a) Yes, common representation is permissible where the clients’ interests mostly align, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis. b) Yes, because conflicts of interest rules do not apply outside the litigation arena, and the parties here are not litigating and do not expect to litigate, but instead are merely hiring the attorney to facilitate negotiations of an issue where the two sides are not far apart. c) No, because the parties’ interests are directly adverse, and a lawyer may not seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis. d) No, because conflicts of interest in a negotiation situation are nonconsentable, as no reasonable lawyer would believe that the conflict of interest would not materially limit his ability to represent both sides; this is especially true of collective bargaining in the employment context.

a) Yes, common representation is permissible where the clients’ interests mostly align, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis.

An experienced attorney practiced at a small firm in a rural area. The attorney regularly represented the county school district in employment discrimination matters. One day, a group of citizens asked the attorney to represent them before the county planning commission to oppose the widening of a county road. The school district had separate budgetary funding, and it had an elected governing Board with its own authority to hire legal counsel. In contrast, the members of the county planning commission were appointees by the County Executive, and lawyers at the County Solicitor’s office handled the legal work for the commission, though the commission and the County Solicitor’s office received their funding from separate line items in the county budget. Would it be proper, under these facts, for the attorney to agree to represent the citizens against the Commission, without informing them of her existing relationship with the School District, and without also securing the Board's consent? a) The attorney must obtain informed consent, confirmed in writing, from the school district and the citizen group regarding the conflict of interest. b) The attorney cannot represent the citizens group against the county, because that would constitute a nonconsentable conflict of interest. c) The attorney would have no obligation under the ethical rules to inform the citizens group about her representation of the school district, or the school district about her representation of the citizens group against the county planning commission in the road-widening dispute. d) The attorney cannot provide representation to the citizen group against the county planning commission in the road-widening dispute, but another lawyer in the attorney’s firm could represent them.

c) The attorney would have no obligation under the ethical rules to inform the citizens group about her representation of the school district, or the school district about her representation of the citizens group against the county planning commission in the road-widening dispute.

Conglomerate Corporation owns a little more than half the stock of Giant Company. Conglomerate’s stock, in turn, is public, available on the public stock exchange, as is the remainder of the stock in Giant Company. The president of Conglomerate Corporation has asked Attorney Stevenson to represent Giant Company in a deal by which Giant would make a proposed transfer of certain real property to Conglomerate Corporation. The property in question is unusual because it contains an underground particle collider used for scientific research, but also valuable farmland on the surface, as well as some valuable mineral rights in another part of the parcel. These factors make the property value difficult to assess by reference to the general real-estate market, which means it is difficult for anyone to determine the fairness of the transfer price in the proposed deal. Would it be proper for Attorney Stevenson to facilitate this property transfer at the behest of the president of Conglomerate, if Attorney Stevenson would be representing Giant as the client in this specific matter? a) Yes, because Conglomerate Corporation owns more than half of Giant Company, so the two corporate entities are one client for purposes of the rules regarding conflicts of interest. b) Yes, because the virtual impossibility of obtaining an appraisal of the fair market value of the property means that the lawyer does not have actual knowledge that the deal is unfair to either party. c) No, because the attorney would be unable to inform either client fully about whether the proposed transfer price would be in their best interest. d) No, not unless the attorney first obtains effective informed consent of the management of Giant Company, as well as that of Conglomerate, because the ownership of Conglomerate and Giant is not identical, and their interests materially differ in the proposed transaction.

d) No, not unless the attorney first obtains effective informed consent of the management of Giant Company, as well as that of Conglomerate, because the ownership of Conglomerate and Giant is not identical, and their interests materially differ in the proposed transaction.

Mr. Burns, the chief executive officer of Conglomerate Corporation, now faces criminal charges of discussing prices with the president of a competing firm. If found guilty, both Mr. Burns and Conglomerate Corporation will be subject to civil and criminal penalties under state and federal antitrust laws. An attorney has been representing Conglomerate Corporation. She has conducted a thorough investigation of the matter, and she has personally concluded that no such pricing discussions occurred. Both Conglomerate Corporation and Mr. Burns plan to defend on that ground. Mr. Burns has asked the attorney to represent him, as well as Conglomerate Corporation, in the proceedings. The legal and factual defenses of Conglomerate Corporation and Mr. Burns seem completely consistent at the outset of the matter. Would the attorney need to obtain informed consent to a conflict of interest from both Mr. Burns and a separate corporate officer at Conglomerate Corporation before proceeding with this dual representation? a) Yes, the likelihood of conflicting positions in such matters as plea bargaining requires the attorney to obtain the informed consent of both clients before proceeding with the representation. b) Yes, because it will always be in the best interest of a corporation to blame the individual who acted in the situation, to avoid liability under a theory of respondeat superior. c) No, because their legal and factual assertions appear identical in this case, so the risk of contradiction or adverse positions in the litigation is de minimis. d) No, because no one else at Conglomerate Corporation would be able to provide effective consent to the potential conflict of interest on behalf of the organization, if the chief executive officer has required the dual representation to occur.

a) Yes, the likelihood of conflicting positions in such matters as plea bargaining requires the attorney to obtain the informed consent of both clients before proceeding with the representation.

Professional Responsibility MPQ Flashcards

(38 cards)