Transactions with Persons Other Than Clients Flashcards
4 Series
Rule 4.1(a) Truthfulness in Statements to Others
Truthfulness in Statements to Others
(a) A lawyer must not knowingly make false statements of material fact or law to others while representing a client.
Rule 4.1(b) Truthfulness in Statements to Others
Truthfulness in Statements to Others
(b) Must disclose material facts if needed to avoid assisting a client’s crime or fraud, unless protected by confidentiality rules.
Rule 4.2 Communication with Person Represented by Counsel
Communication with Person Represented by Counsel
A lawyer must not talk to someone they know is represented in the matter unless they have the other lawyer’s permission or legal authorization.
Colo. RPC 4.2 Communication with Person Represented by Counsel
Communication with Person Represented by Counsel
A party receiving limited representation under Rule 1.2 is still considered unrepresented unless the lawyer knows otherwise.
Rule 4.3 Dealing with Unrepresented Person
Dealing with Unrepresented Person
A lawyer can’t act like they’re neutral if they represent a client.
Must correct misunderstandings and avoid giving legal advice (except to get a lawyer) if there’s a potential conflict.
Rule 4.4(a) Respect for Rights of Third Persons
Respect for Rights of Third Persons
(a) Don’t embarrass, delay, or burden others, or violate their rights while representing a client
Rule 4.4(b)
Respect for Rights of Third Persons
(b) If you receive something by mistake, notify the sender.
Colo. RPC 4.4 Respect for Rights of Third Persons
Respect for Rights of Third Persons
If notified before reading a mis-sent document, lawyer must not read it and must follow instructions for handling it.
Colo. RPC 4.5(a)
Threatening Prosecution
(a) Don’t threaten to file criminal, disciplinary, or administrative charges just to gain an advantage in a civil matter.
Colo. RPC 4.5(b) Threatening Prosecution
Threatening Prosecution
(b) You can notify someone of a possible violation, as long as it’s done in good faith and not as a threat.
An attorney for a company believed that a high-level employee was stealing money from the company. Because the attorney believed that the employee would lie to him, the attorney falsely told the employee that she wasn’t a suspect before questioning her. Based on the attorney’s assurances, the employee made several incriminating statements.
Were the attorney’s actions proper under the Model Rules of Professional Conduct?
A
Yes, because the high-level employee should have understood that the attorney was representing the company.
B
Yes, because the attorney believed the employee would not be truthful during questioning.
C
No, because the employee was an employee of the company.
D
No, because the attorney lied to the employee.
D
No, because the attorney lied to the employee.
Answer option D is correct. Under Model Rule 8.4(c), a lawyer may not “engage in conduct involving fraud, deceit, or misrepresentation.” Model Rules of Prof’l Conduct r. 8.4(c) (Am. Bar Ass’n 2016). Consequently, the attorney could not tell the employee she was not a suspect. Answer option A is incorrect because the fact that the employee should have understood that the attorney did not represent her does not change the analysis. Answer option B is incorrect because the fact that the employee might lie during questioning does not give the attorney license to not follow his ethical obligations. Answer option C is incorrect because the employee’s status with the company does not change the fact that the attorney lied during his investigation.
An attorney for a city police department received notice that a woman had filed a lawsuit against the department for alleged misconduct. The attorney tried to schedule a meeting with the woman’s attorney, but her attorney was busy with another case and couldn’t meet for several months. To resolve the situation as quickly and fairly as possible, the attorney sent an investigator to talk with the woman to get her side of the story. When the investigator met with the woman, she made several statements that severely weakened her claim.
Is the attorney subject to discipline under the Model Rules of Professional Conduct?
A
Yes, because the woman was represented by counsel.
B
Yes, because the woman made statements to her disadvantage.
C
No, because the woman’s attorney was too busy to meet.
D
No, because the attorney did not intend to discover evidence detrimental to the woman’s case.
A
Yes, because the woman was represented by counsel.
Answer option A is correct. A lawyer may not “communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.” Model Rules of Prof’l Conduct r. 4.2 (Am. Bar Ass’n 2016). Here, because the attorney knew the woman was represented by counsel, he could not send the investigator to speak with her. Answer option B is incorrect because the Rule prohibits the communication itself, regardless of its content. Answer option C is incorrect because the availability of the woman’s attorney does not change the analysis. Answer option D is incorrect because the attorney’s intent in sending the investigator is irrelevant.
An attorney represented the plaintiff in an auto accident. Before the accident, the defendant had been at a friend’s birthday party. The attorney called the friend and identified himself as an officer of the court. He asked the friend whether the defendant had been drinking alcohol at the birthday party. The friend was not represented by counsel and had no potential liability for the auto accident. The friend truthfully told the attorney that the defendant had nothing alcoholic to drink at the party.
Is the attorney subject to discipline under the Model Rules of Professional Conduct?
A
Yes, because he asked the friend whether the defendant was drinking alcohol at the party.
B
Yes, because the attorney identified himself only as an officer of the court.
C
No, because the friend was not represented by counsel.
D
No, because the friend had no potential liability for the auto accident.
B
Yes, because the attorney identified himself only as an officer of the court.
Answer option B is correct. Model Rule 4.3 states that “[i]n dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.” Model Rules of Prof’l Conduct r. 4.3 (Am. Bar Ass’n 2016). Here, the attorney identified himself only as an officer of the court and did not disclose that he was working on the plaintiff’s behalf. Answer option A is incorrect because the subject of the communication does not change the analysis. Answer options C and D are incorrect because the dispositive issue is that the attorney did not tell the friend that the attorney was interested in the case, regardless of whether the friend was unrepresented or had no liability for the accident.
An attorney represented the defendant in a civil rights claim. During her investigation, the attorney discovered several nude pictures of one of the plaintiff’s witnesses on a private flash drive that was produced during discovery. Without identifying herself as the defendant’s attorney, the attorney gave the pictures to a local newspaper, which then published the images online.
Is the attorney subject to discipline under the Model Rules of Professional Conduct?
A
Yes, because giving the images to the newspaper would serve only to embarrass the witness.
B
Yes, because the attorney did not disclose that she was interested in the case.
C
No, because the flash drive was produced during discovery and the pictures could have been discovered by others.
D
No, because the witness’s credibility would be at issue in the case.
A
Yes, because giving the images to the newspaper would serve only to embarrass the witness.
Answer option A is correct. A lawyer may not use “means that have no substantial purpose other than to embarrass, delay, or burden a third person.” Model Rules of Prof’l Conduct r 4.4(a) (Am. Bar Ass’n 2016). Here, the attorney had no reason to release the images other than to embarrass the witness. Answer option B is incorrect because whether she admitted her interest or not, the attorney still gave the images to the newspaper for no discernible reason other than to embarrass the witness. Answer option C is incorrect because the fact that others could find the images does not change the attorney’s action in giving them to the newspaper. Answer option D is incorrect because the images would have nothing to do with the witness’s credibility.
A lawyer represented a client who was selling a tract of land with a cabin on it. The land was prone to flooding. Two years earlier, the lawyer had helped the client negotiate with the client’s insurance company after a flood had damaged the cabin. A prospective buyer told the lawyer and the client that the buyer was interested in building a larger vacation property on the land, but he was concerned about the potential for flooding. The prospective buyer’s attorney asked the lawyer if there had been any floods within the past five years. The lawyer said he was unsure, and he would check with his client to be certain. The client told the lawyer to tell the prospective buyer that the cabin had not experienced any flooding while the client had owned it. The client also gave the lawyer a report from a flood-prevention expert, claiming that the property had not suffered any flood damage. The lawyer forwarded the client’s statement and the report to the prospective buyer’s attorney.
Is the lawyer subject to discipline under the Model Rules of Professional Conduct for forwarding this information?
A
Yes, because the lawyer made a knowingly false statement of material fact in the course of representing a client.
B
Yes, because the lawyer made a false statement of material fact to another attorney.
C
No, because the lawyer did not owe a duty to be truthful to the other side of a negotiation.
D
No, because the client, not the lawyer, is responsible for the truthfulness of the statement and the report.
A
Yes, because the lawyer made a knowingly false statement of material fact in the course of representing a client.
Answer option A is correct. In the course of representing a client, a lawyer must not knowingly make a false statement of material fact or law to a third person. Model Rules of Prof’l Conduct r. 4.1(a) (Am. Bar Ass’n 2016). A lawyer must be truthful in dealing with others on the client’s behalf. Id. at r. 4.1 cmt. 1. An improper misrepresentation can occur even if the lawyer merely affirms a statement of another person, like a client, that the lawyer knows is false. Id.
Here, the lawyer knows that the information the client is providing about the property’s flood history is false because the lawyer had helped the client with an insurance recovery after the cabin was damaged by a flood two years earlier. By forwarding and affirming the flood information that the lawyer knew was false, the lawyer violated his obligations under Rule 4.1.
Answer option B is incorrect because Rule 4.1 prohibits only knowingly false statements of material fact, not all false statements of material fact. See id. at r. 4.1(a). Also, a lawyer’s obligation to be truthful when dealing on a client’s behalf applies to dealings with all third parties, not just other attorneys. See id.
Answer option C is incorrect because even though the lawyer was negotiating for his client, the lawyer still had obligation to be truthful when making or affirming statements to others involved in the negotiation, like the prospective buyer and the buyer’s attorney. See id. at Preamble and Scope, at 2 & r. 4.1.
Answer option D is incorrect because the lawyer also became responsible for the client’s false statement when the lawyer affirmed the statement by forwarding it to the prospective buyer. Once the lawyer affirmed the knowingly false statement about the lack of flood damage, the lawyer independently made a misrepresentation in violation of his duty to be truthful
