MPRE Study QUESTIONS AND
ANSWERS
Does info need to be relayed for legal advice to fall under attorney-client
privilege? - ANSWER>>A confidential communication between a client and her
attorney is privileged. The evidentiary attorney-client privilege covers the client's
communication to an attorney whom the client reasonably believes represents
the client, and the circumstances indicate a desire by the client for confidentiality.
Although the attorney does not need to give advice or agree to the
representation for the privilege to exist, the communication must be for the
purpose of seeking legal advice or representation. Although the statement about
the client's child was given in confidence and would be protected by the
attorney's ethical duty of confidentiality, it is not subject to the attorney-client
privilege because it was not relayed for the purpose of obtaining legal advice.
May an attorney reveal confidential info to prevent fraud or do they have to? -
ANSWER>>A lawyer may, but is not required to, reveal confidential information if
he believes it necessary to prevent a fraud that is reasonably certain to result in
substantial financial harm to another. Since the facts do not suggest that the
attorney acted with the intent to assist the husband in his fraud, disclosure is also
not necessary to avoid assisting a criminal or fraudulent act.
Can a lawyer have a consensual sexual relationship with a client? - ANSWER>>A
lawyer is prohibited from engaging in sexual relations with a client, unless a
consensual sexual relationship existed between the lawyer and client when the
client-lawyer relationship commenced. Here, the sexual relationship began after
the client-lawyer relationship commenced, therefore the attorney is subject to
discipline.
Can an attorney advocate in a trial in which another attorney in the firm is a
witness? - ANSWER>>An attorney is permitted to act as an advocate in a trial in
which another attorney in his firm is likely to be called as a witness, unless the
,conflict-of-interest rules otherwise preclude the attorney from doing so. Here, the
facts do not indicate that there is any conflict, and the fact that the partner may
be called as a witness does not prohibit a member of his firm from representing
that client.
When does a lawyer have to withdraw from representing two clients at once if
there is a CoI? - ANSWER>>Ordinarily, a lawyer will be forced to withdraw from
representing all of the clients if the common representation fails. Here, the
common representation has failed because a substantial conflict has arisen by
reason of substantial discrepancy in the parties' testimony. Initially, the attorney
was under the impression that the brother and sister agreed to rob the bank
together. However, he later learned that according to the brother, the sister had
masterminded the entire robbery and forced her brother to go along with the
robbery against his will. Common representation of the brother and sister would
not be successful at this point as there is a clear conflict of interest. Therefore the
attorney must now withdraw from representing both the brother and the sister.
Keep in mind, he can't represent both as the sister is owed a duty as a former
client.
When can a former govt atty rep a client who he knows confidential gov info
about? - ANSWER>>Except as the law may otherwise expressly permit, a
government lawyer who acquires information that the lawyer knows is
confidential government information about a person may not later represent a
private client whose interests are adverse to that person in a matter in which the
information could be used to that person's material disadvantage. Confidential
government information is information that has been obtained under
governmental authority and which the government is prohibited by law from
disclosing to the public
When can a third party pay for legal fees? - ANSWER>>A lawyer may not accept
payment for representation from someone other than the client, unless: (i) the
client gives informed consent; (ii) there is no interference with the lawyer's
professional judgment; and (iii) client-lawyer confidentiality is preserved. Here,
, the doctor gave his informed consent and there was no interference with the
lawyer's professional judgment. However, client-lawyer confidentiality was not
preserved because the attorney had regular meetings with a hospital
representative where confidential issues were discussed. Therefore, the attorney
is subject to discipline. Can't consent away confidentiality.
What duty does the atty owe to the client and what's the level? - ANSWER>>A
lawyer owes a duty of care to the client. The duty of care is generally the
competence and diligence exercised by lawyers of similar experience under
similar conditions. Here, the attorney breached her duty of care to the client by
inadvertently including the metadata that revealed confidential client information
which ultimately caused the client to lose many thousands of dollars on the
transaction. Therefore, the client is likely to succeed in a malpractice claim against
the attorney based on negligence.
Can an OP's atty be sued for negligence by the OP? - ANSWER>>A lawyer
representing a party in litigation has no duty of care to the opposing party, and
thus no liability for lack of care, except in unusual situations such as when a
litigant has been invited to rely on the opinion or legal services of the lawyer (e.g.,
an opinion letter from opposing counsel as part of a settlement). Thus, the
plaintiff's attorney is not likely to be subject to civil liability to the corporation for
negligence. Even if the plaintiff's attorney had failed to exercise reasonable care
in bringing the action, causing the corporation to incur unnecessary legal
expenses, it would not make the plaintiff's attorney subject to civil liability to the
corporation for negligence because the plaintiff's attorney had no duty to act with
due care for the corporation's interests.
Is a lawyer subject to going with a more favorable standard because OP doesn't
know about it but he does? - ANSWER>>A lawyer must disclose to the tribunal
legal authority in the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and that was not disclosed by opposing
counsel. Here, the lawyer knew that a recent ruling had adopted a more lenient
locality standard of care for medical malpractice claims, and that the plaintiff's
ANSWERS
Does info need to be relayed for legal advice to fall under attorney-client
privilege? - ANSWER>>A confidential communication between a client and her
attorney is privileged. The evidentiary attorney-client privilege covers the client's
communication to an attorney whom the client reasonably believes represents
the client, and the circumstances indicate a desire by the client for confidentiality.
Although the attorney does not need to give advice or agree to the
representation for the privilege to exist, the communication must be for the
purpose of seeking legal advice or representation. Although the statement about
the client's child was given in confidence and would be protected by the
attorney's ethical duty of confidentiality, it is not subject to the attorney-client
privilege because it was not relayed for the purpose of obtaining legal advice.
May an attorney reveal confidential info to prevent fraud or do they have to? -
ANSWER>>A lawyer may, but is not required to, reveal confidential information if
he believes it necessary to prevent a fraud that is reasonably certain to result in
substantial financial harm to another. Since the facts do not suggest that the
attorney acted with the intent to assist the husband in his fraud, disclosure is also
not necessary to avoid assisting a criminal or fraudulent act.
Can a lawyer have a consensual sexual relationship with a client? - ANSWER>>A
lawyer is prohibited from engaging in sexual relations with a client, unless a
consensual sexual relationship existed between the lawyer and client when the
client-lawyer relationship commenced. Here, the sexual relationship began after
the client-lawyer relationship commenced, therefore the attorney is subject to
discipline.
Can an attorney advocate in a trial in which another attorney in the firm is a
witness? - ANSWER>>An attorney is permitted to act as an advocate in a trial in
which another attorney in his firm is likely to be called as a witness, unless the
,conflict-of-interest rules otherwise preclude the attorney from doing so. Here, the
facts do not indicate that there is any conflict, and the fact that the partner may
be called as a witness does not prohibit a member of his firm from representing
that client.
When does a lawyer have to withdraw from representing two clients at once if
there is a CoI? - ANSWER>>Ordinarily, a lawyer will be forced to withdraw from
representing all of the clients if the common representation fails. Here, the
common representation has failed because a substantial conflict has arisen by
reason of substantial discrepancy in the parties' testimony. Initially, the attorney
was under the impression that the brother and sister agreed to rob the bank
together. However, he later learned that according to the brother, the sister had
masterminded the entire robbery and forced her brother to go along with the
robbery against his will. Common representation of the brother and sister would
not be successful at this point as there is a clear conflict of interest. Therefore the
attorney must now withdraw from representing both the brother and the sister.
Keep in mind, he can't represent both as the sister is owed a duty as a former
client.
When can a former govt atty rep a client who he knows confidential gov info
about? - ANSWER>>Except as the law may otherwise expressly permit, a
government lawyer who acquires information that the lawyer knows is
confidential government information about a person may not later represent a
private client whose interests are adverse to that person in a matter in which the
information could be used to that person's material disadvantage. Confidential
government information is information that has been obtained under
governmental authority and which the government is prohibited by law from
disclosing to the public
When can a third party pay for legal fees? - ANSWER>>A lawyer may not accept
payment for representation from someone other than the client, unless: (i) the
client gives informed consent; (ii) there is no interference with the lawyer's
professional judgment; and (iii) client-lawyer confidentiality is preserved. Here,
, the doctor gave his informed consent and there was no interference with the
lawyer's professional judgment. However, client-lawyer confidentiality was not
preserved because the attorney had regular meetings with a hospital
representative where confidential issues were discussed. Therefore, the attorney
is subject to discipline. Can't consent away confidentiality.
What duty does the atty owe to the client and what's the level? - ANSWER>>A
lawyer owes a duty of care to the client. The duty of care is generally the
competence and diligence exercised by lawyers of similar experience under
similar conditions. Here, the attorney breached her duty of care to the client by
inadvertently including the metadata that revealed confidential client information
which ultimately caused the client to lose many thousands of dollars on the
transaction. Therefore, the client is likely to succeed in a malpractice claim against
the attorney based on negligence.
Can an OP's atty be sued for negligence by the OP? - ANSWER>>A lawyer
representing a party in litigation has no duty of care to the opposing party, and
thus no liability for lack of care, except in unusual situations such as when a
litigant has been invited to rely on the opinion or legal services of the lawyer (e.g.,
an opinion letter from opposing counsel as part of a settlement). Thus, the
plaintiff's attorney is not likely to be subject to civil liability to the corporation for
negligence. Even if the plaintiff's attorney had failed to exercise reasonable care
in bringing the action, causing the corporation to incur unnecessary legal
expenses, it would not make the plaintiff's attorney subject to civil liability to the
corporation for negligence because the plaintiff's attorney had no duty to act with
due care for the corporation's interests.
Is a lawyer subject to going with a more favorable standard because OP doesn't
know about it but he does? - ANSWER>>A lawyer must disclose to the tribunal
legal authority in the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and that was not disclosed by opposing
counsel. Here, the lawyer knew that a recent ruling had adopted a more lenient
locality standard of care for medical malpractice claims, and that the plaintiff's
