Suppose that an attorney is aware of a client's fraud that would take the client's
communications outside the protection of the privilege (because of the crime-fraud
exception) but under the rules of professional conduct in that state the attorney does
not have discretion to disclose financial frauds. Where does that leave the attorney?
a. The attorney cannot voluntarily disclose the client's misconduct, but if attorney's
testimony is sought in a proceeding, the attorney will be required to testify.
b. The attorney may report the client's fraud to a government official because there is
no attorney-client privilege in place.
Give this one a try later!
a. The attorney cannot voluntarily disclose the client's misconduct, but if
attorney's testimony is sought in a proceeding, the attorney will be required
to testify.
,Attorney Elkins worked for awhile at Big Firm. While there, Elkins represented a client
in an action against Ace Corporation alleging unfair trade practices and antitrust
violations. Attorney Elkins then went to work for a federal regulatory agency. There,
Elkin's first assignment was to bring an enforcement action against Ace Corporation
for violating antitrust laws and unfair trade practice laws. Attorney Elkins obtained
written informed consent from his previous client to pursue a related matter against
Ace Corporation, but not from the agency itself or from Ace Corporation. Is this
proper if the matter is substantially related?
a. Yes, because the conflict of interest rules apply to attorneys leaving government
service for private practice, but here, Attorney Elkins has done the opposite, going
from private practice to government service.
b. Yes, because the interest of Elkin's previous client and his new employer align,
rather than being adverse, so there is no conflict of interest.
c. No, because Elkins pursued a claim on behalf of a private client, so he may not
pursue the claim on behalf of the government, unless the appropriate government
agency gives its informed consent, confirmed in writing.
d. No, because Attorney Elkins did not obtain written informed consent from Ace
Corporation at the onset of the new enforcement action, even though the action is
directly adverse to Ace Corporation.
Give this one a try later!
c. No, because Elkins pursued a claim on behalf of a private client, so he
may not pursue the claim on behalf of the government, unless the
appropriate government agency gives its informed consent, confirmed in
writing.
A lawyer was defending a doctor in a medical-malpractice action. In preparing a brief
in support of summary judgment, the lawyer found a not widely cited, but still
controlling, case that directly contradicted one of the lawyer's secondary or fallback
arguments. Despite this issue, the lawyer decided to proceed with the secondary
,argument in the defendant's opening brief. However, the lawyer did not identify or
cite the contradictory case anywhere in the opening brief. The plaintiff's brief
opposing the summary-judgment motion did not cite the contradictory case either.
Do the Model Rules of Professional Conduct require the lawyer to cite the
contradictory case in the reply brief supporting the defendant's summary-judgment
motion or otherwise bring the case to the court's attention?
a. Yes, because the case is from the controlling jurisdiction and is directly adverse to
the client's position.
b. Yes, because the lawyer is required to cite all relevant case law in summary-
judgment briefing, regardless of whether it supports his client's position.
c. No, because the case is not widely cited.
d. No, because the case only pertains to a fallback position, not the lawyer's main
argument on summery judgment.
Give this one a try later!
a. Yes, because the case is from the controlling jurisdiction and is directly
adverse to the client's position.
An assistant county prosecutor worked with the sheriff to investigate a drug-related
murder. Several informants passed along rumors that the murder was committed by a
local shopkeeper. Although the prosecutor knew that the rumors did not amount to
probable cause to believe that the shopkeeper committed the murder, the
investigation did uncover sufficient evidence to convict the shopkeeper of rarely-
enforced misdemeanor provisions governing the disposal of trash. In the prosecutor's
jurisdiction, a prosecutor may file criminal charges without obtaining an indictment by
a grand jury.
The prosecutor filed charges alleging that the shopkeeper committed the murder in
violation of a felony provision and that he also violated the misdemeanor trash
provisions. After the sheriff arrested the shopkeeper, the prosecutor undertook the
prosecution in the hope that witnesses would come forward with admissible evidence
, of the shopkeeper's role in the murder. Is the prosecutor subject to discipline?
a. Yes, because he prosecuted a murder charge that he knew was not supported by
probable cause.
b. Yes, because he prosecuted a misdemeanor charge as a pretext for punishing the
shopkeeper for a more serious crime for which there was insufficient evidence.
c. No, because the rumors of the shopkeeper's commission of the murder justified
initiating a prosecution with the hope that witnesses would come forward with
admissible evidence.
d. No, because there was sufficient evidence to convict the shopkeeper of the
misdemeanor provisions.
Give this one a try later!
a. Yes, because he prosecuted a murder charge that he knew was not
supported by probable cause.
Burke is a trusts and estates lawyer. Ida, an acquaintance, asks him to represent her in
a negligence lawsuit against a major retain company. She stands to make million from
the lawsuit, and she is happy to hire Burke on a contingent fee basis. Burke accepts
the case. He does not tell Ida that he has no experience in negligence work and has
not handled a trial. He wishes that he knew a lawyer who was experienced in handling
cases of this sort whom he could consult, but unfortunately, he does not have such a
contact. He studied the relevant law and procedure. He performs well but loses the
case. Is Burke subject to discipline?
a. Yes, because he did not tell Ida that he had never handled a negligence claim or a
trial.
b. Yes, because he failed to associate with a lawyer experienced in handling
negligence actions.
c. No, because he studied the relevant law and procedure and performed well.
communications outside the protection of the privilege (because of the crime-fraud
exception) but under the rules of professional conduct in that state the attorney does
not have discretion to disclose financial frauds. Where does that leave the attorney?
a. The attorney cannot voluntarily disclose the client's misconduct, but if attorney's
testimony is sought in a proceeding, the attorney will be required to testify.
b. The attorney may report the client's fraud to a government official because there is
no attorney-client privilege in place.
Give this one a try later!
a. The attorney cannot voluntarily disclose the client's misconduct, but if
attorney's testimony is sought in a proceeding, the attorney will be required
to testify.
,Attorney Elkins worked for awhile at Big Firm. While there, Elkins represented a client
in an action against Ace Corporation alleging unfair trade practices and antitrust
violations. Attorney Elkins then went to work for a federal regulatory agency. There,
Elkin's first assignment was to bring an enforcement action against Ace Corporation
for violating antitrust laws and unfair trade practice laws. Attorney Elkins obtained
written informed consent from his previous client to pursue a related matter against
Ace Corporation, but not from the agency itself or from Ace Corporation. Is this
proper if the matter is substantially related?
a. Yes, because the conflict of interest rules apply to attorneys leaving government
service for private practice, but here, Attorney Elkins has done the opposite, going
from private practice to government service.
b. Yes, because the interest of Elkin's previous client and his new employer align,
rather than being adverse, so there is no conflict of interest.
c. No, because Elkins pursued a claim on behalf of a private client, so he may not
pursue the claim on behalf of the government, unless the appropriate government
agency gives its informed consent, confirmed in writing.
d. No, because Attorney Elkins did not obtain written informed consent from Ace
Corporation at the onset of the new enforcement action, even though the action is
directly adverse to Ace Corporation.
Give this one a try later!
c. No, because Elkins pursued a claim on behalf of a private client, so he
may not pursue the claim on behalf of the government, unless the
appropriate government agency gives its informed consent, confirmed in
writing.
A lawyer was defending a doctor in a medical-malpractice action. In preparing a brief
in support of summary judgment, the lawyer found a not widely cited, but still
controlling, case that directly contradicted one of the lawyer's secondary or fallback
arguments. Despite this issue, the lawyer decided to proceed with the secondary
,argument in the defendant's opening brief. However, the lawyer did not identify or
cite the contradictory case anywhere in the opening brief. The plaintiff's brief
opposing the summary-judgment motion did not cite the contradictory case either.
Do the Model Rules of Professional Conduct require the lawyer to cite the
contradictory case in the reply brief supporting the defendant's summary-judgment
motion or otherwise bring the case to the court's attention?
a. Yes, because the case is from the controlling jurisdiction and is directly adverse to
the client's position.
b. Yes, because the lawyer is required to cite all relevant case law in summary-
judgment briefing, regardless of whether it supports his client's position.
c. No, because the case is not widely cited.
d. No, because the case only pertains to a fallback position, not the lawyer's main
argument on summery judgment.
Give this one a try later!
a. Yes, because the case is from the controlling jurisdiction and is directly
adverse to the client's position.
An assistant county prosecutor worked with the sheriff to investigate a drug-related
murder. Several informants passed along rumors that the murder was committed by a
local shopkeeper. Although the prosecutor knew that the rumors did not amount to
probable cause to believe that the shopkeeper committed the murder, the
investigation did uncover sufficient evidence to convict the shopkeeper of rarely-
enforced misdemeanor provisions governing the disposal of trash. In the prosecutor's
jurisdiction, a prosecutor may file criminal charges without obtaining an indictment by
a grand jury.
The prosecutor filed charges alleging that the shopkeeper committed the murder in
violation of a felony provision and that he also violated the misdemeanor trash
provisions. After the sheriff arrested the shopkeeper, the prosecutor undertook the
prosecution in the hope that witnesses would come forward with admissible evidence
, of the shopkeeper's role in the murder. Is the prosecutor subject to discipline?
a. Yes, because he prosecuted a murder charge that he knew was not supported by
probable cause.
b. Yes, because he prosecuted a misdemeanor charge as a pretext for punishing the
shopkeeper for a more serious crime for which there was insufficient evidence.
c. No, because the rumors of the shopkeeper's commission of the murder justified
initiating a prosecution with the hope that witnesses would come forward with
admissible evidence.
d. No, because there was sufficient evidence to convict the shopkeeper of the
misdemeanor provisions.
Give this one a try later!
a. Yes, because he prosecuted a murder charge that he knew was not
supported by probable cause.
Burke is a trusts and estates lawyer. Ida, an acquaintance, asks him to represent her in
a negligence lawsuit against a major retain company. She stands to make million from
the lawsuit, and she is happy to hire Burke on a contingent fee basis. Burke accepts
the case. He does not tell Ida that he has no experience in negligence work and has
not handled a trial. He wishes that he knew a lawyer who was experienced in handling
cases of this sort whom he could consult, but unfortunately, he does not have such a
contact. He studied the relevant law and procedure. He performs well but loses the
case. Is Burke subject to discipline?
a. Yes, because he did not tell Ida that he had never handled a negligence claim or a
trial.
b. Yes, because he failed to associate with a lawyer experienced in handling
negligence actions.
c. No, because he studied the relevant law and procedure and performed well.
