MPRE — Multistate Professional Responsibility Exam — Study Guide
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Outline area IV · NCBE's approximate share of the exam: 12–18%, the largest single area[1]
Conflicts of interest are the heaviest area on the MPRE, and the one where a method pays off most. Almost every conflicts question can be solved with the four steps the comment to Rule 1.7 lays out: "1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing."[2] Then ask a fifth question the rule does not state but the exam always does: does the conflict spread to the lawyer's firm?
This chapter follows the outline: current-client conflicts (multiple clients, then the lawyer's own interests), former clients, prospective clients, imputation, the specific prohibitions of Rule 1.8, government lawyers, and former judges and neutrals.
IV.A Current client conflicts — multiple clients and joint representation
The two kinds of conflict. Rule 1.7(a): "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."[3]
Direct adversity is simple and strict. "Absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated."[2] Suing a current client on behalf of another client is direct adversity even if the two matters have nothing in common. Cross-examining a current client who is a witness in another case usually is too.
Material limitation is subtler. "Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests." The comment's example: "a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others."[2] The word significant matters: a remote or speculative possibility is not a conflict.
Consent, and when consent is not enough. Rule 1.7(b): notwithstanding a conflict, the lawyer may proceed if "(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve 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; and (4) each affected client gives informed consent, confirmed in writing."[3]
Three things fall out of that list.
- Some conflicts are nonconsentable. "Some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent."[2] The clearest: representing both sides of the same lawsuit. "Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent."[2] Also nonconsentable: any case in which a disinterested lawyer could not reasonably believe competent and diligent representation is possible.
- "Confirmed in writing" is not a signature requirement. It means "informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent."[4] Contrast Rule 1.8(a), (g), and 1.5(c), which require a writing signed by the client.
- Consent must be informed. If a lawyer cannot disclose enough to one client for the other to decide — because the first client refuses to allow the disclosure — "the lawyer cannot properly ask the latter to consent."[2]
Co-parties. Representing co-plaintiffs or co-defendants is not direct adversity; it is "governed by paragraph (a)(2)." A conflict may arise from "substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement."[2] In criminal cases the comment warns that the potential for conflict in representing multiple defendants "is so grave that ordinarily a lawyer should decline to represent more than one co-defendant."[2]
Joint representation in transactions. A lawyer may represent several clients in one deal — two founders forming a company, spouses making an estate plan — with informed consent. The lawyer must advise the clients at the outset about two consequences:
- Privilege. "As between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised."[2]
- No secrets. "Continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation."[2]
If the joint representation fails, "ordinarily, the lawyer will be forced to withdraw from representing all of the clients." And the comment is blunt about hopeless cases: "a lawyer cannot undertake common representation of clients where contentious litigation or negotiations between them are imminent or contemplated."[2]
Aggregate settlements. When a lawyer represents several clients, Rule 1.8(g) forbids participating "in making an aggregate settlement of the claims of or against the clients … unless each client gives informed consent, in a writing signed by the client," with disclosure of "the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement."[5] A defendant's lump-sum offer to settle with all five of a lawyer's plaintiffs cannot be divided up by the lawyer and accepted by majority vote.
Positional conflicts. "Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients." A conflict exists only if there is a significant risk that winning for one client "will create a precedent likely to seriously weaken the position taken on behalf of the other client."[2]
Organizational affiliates. Representing a corporation does not automatically mean representing its parent or subsidiary: "the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer," there is an understanding to avoid such adversity, or the lawyer's obligations would be materially limited.[2]
IV.B Current client conflicts — lawyer's personal interest or duties
Rule 1.7(a)(2) also reaches the lawyer's own interests. The comment gives examples: when "the probity of a lawyer's own conduct in a transaction is in serious question"; when "a lawyer has discussions concerning possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent"; and when a lawyer refers clients "to an enterprise in which the lawyer has an undisclosed financial interest."[2]
Related lawyers. Lawyers related as parent, child, sibling, or spouse who represent opposing sides in the same matter have a personal-interest conflict; each ordinarily may not represent a client against the other without informed consent. The conflict is personal and, under Rule 1.10(a)(1), generally not imputed to the rest of their firms.
Sexual relations. Rule 1.8(j): "A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced."[5] The comment explains the reason: the relationship "is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role."[6] Consent does not cure it; a preexisting relationship does. Unlike the other 1.8 conflicts, 1.8(j) is not imputed to other lawyers in the firm (Rule 1.8(k) covers only paragraphs (a) through (i)).[5]
Gifts from clients. Rule 1.8(c): a lawyer "shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client." Related persons include "a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship."[5] The comment clarifies what is allowed: "a simple gift such as a present given at a holiday or as a token of appreciation is permitted," and a lawyer may accept an unsolicited substantial gift, although it "may be voidable by the client under the doctrine of undue influence."[6] What the lawyer may not do is draft the will that leaves the lawyer a substantial bequest; another, independent lawyer must draft it.
Literary and media rights. Rule 1.8(d): "Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."[5] After the case ends, such an agreement is permitted (subject to Rule 1.8(a) and confidentiality).
Financial assistance. Rule 1.8(e) bars financial assistance "in connection with pending or contemplated litigation," except that a lawyer "may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter"; a lawyer for an indigent client "may pay court costs and expenses of litigation on behalf of the client"; and, since August 2020,[7] a lawyer representing an indigent client pro bono (including through a legal-services organization or law school clinic) "may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses," as long as the lawyer does not promise the gifts before retention, seek reimbursement, or advertise them.[5] The pro bono exception does not reach "contingent-fee personal injury cases."[6]
IV.C Former client conflicts
The rule. Rule 1.9(a): "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."[8]
Three elements must all be present: (1) same or substantially related matter, (2) material adversity to the former client, and (3) no informed consent confirmed in writing. Remove any one and the representation is permitted under 1.9(a).
Substantially related. Matters are substantially related "if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter." The comment's examples: a lawyer who learned a businessperson's private finances may not represent the spouse in a divorce; a lawyer who obtained environmental permits for a shopping center may not represent neighbors opposing its rezoning on environmental grounds.[9]
Lawyers who change firms. Rule 1.9(b) applies when a lawyer's former firm represented a client: the moving lawyer is personally disqualified from being adverse to that client in a substantially related matter only if the lawyer "had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter."[8] A lawyer who never worked on or learned about the former firm's matter is not disqualified.
Using and revealing former-client information. Rule 1.9(c) forbids using a former client's information "to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known," and revealing it except as the Rules permit.[8]
Current versus former. Whether someone is a current or former client matters enormously — adversity to a current client is barred even in unrelated matters, while adversity to a former client is barred only in substantially related ones. A lawyer may not drop a current client "like a hot potato" to convert it into a former client; the conflict analysis looks at the relationship as it stood.
Sources cited in this excerpt
- MPRE Subject Matter Outline (PDF). National Conference of Bar Examiners (NCBE), PDF dated 2013 (copyright line); linked as the current outline from NCBE's Preparing for the MPRE page, read 2026-09-25. https://www.ncbex.org/sites/default/files/2023-01/MPRE_Subject_Matter_Outline.pdf
- ABA Model Rule of Professional Conduct 1.7 — Comment: Conflict of Interest: Current Clients. American Bar Association, Internet Archive capture 2026-09-01. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/comment_on_rule_1_7/
- ABA Model Rule of Professional Conduct 1.7: Conflict of Interest: Current Clients. American Bar Association, Internet Archive capture 2026-09-13. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/
- ABA Model Rule of Professional Conduct 1.0: Terminology. American Bar Association, Internet Archive capture 2025-11-30. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_0_terminology/
- ABA Model Rule of Professional Conduct 1.8: Current Clients: Specific Rules. American Bar Association, Internet Archive capture 2025-08-30. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_8_current_clients_specific_rules/
- ABA Model Rule of Professional Conduct 1.8 — Comment: Conflict of Interest: Current Clients: Specific Rules. American Bar Association, Internet Archive capture 2025-12-07. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_8_current_clients_specific_rules/comment_on_rule_1_8/
- Model Rules of Professional Conduct (landing page, 'Most Recent Changes to the Model Rules'). American Bar Association, Internet Archive capture 2026-09-12. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/
- ABA Model Rule of Professional Conduct 1.9: Duties to Former Clients. American Bar Association, Internet Archive capture 2026-07-04. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/
- ABA Model Rule of Professional Conduct 1.9 — Comment: Duties to Former Clients. American Bar Association, Internet Archive capture 2025-08-10. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/comment_on_rule_1_9/
Regulation of the Legal Profession
State high courts regulate lawyers; the MPRE tests the ABA Model Rules as written. This area covers admission, discipline, reporting misconduct, unauthorized and multijurisdictional practice, and how law firms may be owned and run.
The Client-Lawyer Relationship
The client decides the goals; the lawyer manages the means after consultation and keeps the client informed. Fees are the most-tested topic in this area.
Client Confidentiality
Three bodies of law protect client information: the attorney-client privilege, the work-product doctrine, and the ethical duty of confidentiality in Rule 1.6. They differ in scope and in what they protect against.
Conflicts of Interest
The largest area on the MPRE. Identify the clients, find the conflict, decide whether it is consentable, obtain informed consent confirmed in writing, and then ask whether the conflict spreads to the firm.
Competence, Malpractice, and Civil Liability
Discipline and civil liability are separate systems. A Rule violation is not itself a cause of action, and malpractice requires damages caused by a breach of the standard of care.
Litigation and Other Forms of Advocacy
Advocates must press the client's case without corrupting the process. When the two duties collide, candor to the tribunal usually wins.
Transactions and Communications with Non-Clients
Loyalty to the client does not license a lawyer to deceive or overreach others.
Different Roles of the Lawyer
Lawyers advise, evaluate, negotiate, serve as neutrals, prosecute, lobby, and represent organizations, and each role changes the rules.
Safekeeping Funds and Other Property
Keep it separate, keep records, and pay promptly.
Communications About Legal Services
Lawyer advertising is protected commercial speech, but it must not be false or misleading, and live solicitation for pecuniary gain may be banned.
Duties to the Public and the Legal System
The smallest area: pro bono service, court appointments, service on legal-services and law-reform boards, criticism of judges, and political contributions.
Judicial Conduct
The MPRE also tests the ABA Model Code of Judicial Conduct: independence and impartiality, ex parte communications, disqualification, and extrajudicial and political activity.
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