MPRE — Multistate Professional Responsibility Exam — All Questions

A lawyer wants to represent a new client in a matter directly adverse to an existing client in an unrelated matter. Under Model Rule 1.7, the lawyer may proceed only if, among other requirements:

• a.The lawyer discloses the conflict to the court only
• b.The lawyer charges both clients a reduced fee
• c.At least one client consents orally
• d.Each affected client gives informed consent, confirmed in writing✓

Rule 1.7(b) permits representation despite a concurrent conflict only if the lawyer reasonably believes the representation will be competent and diligent, it is not prohibited by law, it does not involve one client's claim against another in the same litigation, and "each affected client gives informed consent, confirmed in writing." Oral consent from one client is insufficient.

A lawyer formerly represented a company in negotiating a contract. A new client now wants to sue that former client in a substantially related matter with materially adverse interests. The lawyer may take the case only if:

• a.The new matter arose more than one year later
• b.The new client agrees to waive fees
• c.The lawyer no longer remembers confidential information
• d.The former client consents, confirmed in writing✓

Rule 1.9(a) bars representing another person in the same or a substantially related matter with materially adverse interests "unless the former client gives informed consent, confirmed in writing." The passage of time or a faded memory does not remove the conflict.

One lawyer in a firm has a conflict under Rule 1.7 or 1.9 that prohibits handling a matter. Under the general imputation rule of Model Rule 1.10, the conflict is:

• a.Imputed to the firm, subject to limited exceptions✓
• b.Automatically waived once the lawyer leaves the firm
• c.Cured if the firm charges no fee for the matter
• d.Limited to that one lawyer with no effect on the firm

Under Rule 1.10(a), while lawyers are associated in a firm, none of them may knowingly represent a client when any one of them practicing alone would be prohibited by Rules 1.7 or 1.9, subject to exceptions for purely personal conflicts and for screened lawyers who come from another firm.

In a civil case, who has the authority to decide whether to accept a settlement offer?

• a.The client, after consulting the lawyer✓
• b.The lawyer, because settlement is a tactical matter
• c.The lawyer and client jointly, by majority vote
• d.The judge presiding over the case

Under Rule 1.2(a), "a lawyer shall abide by a client's decision whether to settle a matter." Settlement is not a tactical decision reserved to the lawyer, though the lawyer should advise the client.

Under Model Rule 1.5, a contingent fee agreement:

• a.May be oral if the fee is reasonable
• b.Must be in a writing signed by the client✓
• c.Is permitted in criminal defense cases
• d.Is prohibited in all civil cases

Rule 1.5(c) requires a contingent fee agreement to be "in a writing signed by the client," stating how the fee is determined and how expenses are treated. Rule 1.5(d) separately prohibits contingent fees for criminal defendants and fees contingent on securing a divorce or on the amount of alimony, support, or a property settlement.

When a representation ends, Model Rule 1.16 requires the lawyer to:

• a.Keep all client files permanently and never return them
• b.Retain any unearned portion of an advance fee as a penalty
• c.Protect the client's interests and refund unearned fees✓
• d.Refuse to provide the file until a new lawyer is retained

Rule 1.16(d) requires the lawyer to take reasonable steps to protect the client's interests, "such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred."

During trial, a lawyer comes to know that a witness the lawyer called has given material false testimony. Under Model Rule 3.3, the lawyer must:

• a.Take reasonable remedial measures✓
• b.Immediately withdraw without informing anyone
• c.Simply avoid relying on the false testimony in closing argument
• d.Do nothing, because the duty of confidentiality controls

Rule 3.3(a)(3) requires a lawyer who comes to know that a witness the lawyer called has offered material false evidence to "take reasonable remedial measures, including, if necessary, disclosure to the tribunal," and Rule 3.3(c) applies even to information otherwise protected by Rule 1.6.

Under Model Rule 3.3, when there is legal authority in the controlling jurisdiction directly adverse to the client's position and opposing counsel has not cited it, the lawyer must:

• a.Cite it only after the client consents
• b.Cite it only if the judge specifically asks
• c.Disclose it to the tribunal✓
• d.Keep silent, since the duty is to advocate for the client

Rule 3.3(a)(2) forbids knowingly failing to disclose "legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." The lawyer may then argue the case is distinguishable.

Under Model Rule 3.4, which conduct by a trial lawyer is prohibited?

• a.Requesting a continuance for good cause
• b.Vigorously cross-examining an opposing witness
• c.Counseling a witness to testify falsely✓
• d.Objecting to inadmissible evidence

Rule 3.4(b) forbids a lawyer to "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." The other choices are ordinary advocacy.

A lawyer knows that another lawyer has committed a violation that raises a substantial question about that lawyer's honesty. The information is not confidential. Under Model Rule 8.3, the lawyer must:

• a.Keep the information secret in all circumstances
• b.Confront the other lawyer privately and take no further action
• c.Report it to the appropriate professional authority✓
• d.Report only if the misconduct occurred in a courtroom

Rule 8.3(a) requires a lawyer who knows of such a violation to "inform the appropriate professional authority." Rule 8.3(c) excuses reporting only when the information is protected by Rule 1.6 or was gained in an approved lawyers assistance program.

Under Model Rule 8.4, which of the following is professional misconduct?

• a.Charging a reasonable hourly fee
• b.Declining to represent a prospective client
• c.Advertising legal services truthfully
• d.Conduct involving dishonesty or deceit✓

Rule 8.4(c) makes it professional misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." The other choices describe permitted conduct.

How does the duty of confidentiality under Model Rule 1.6 differ from the attorney-client evidentiary privilege?

• a.It is broader, covering information from any source✓
• b.The privilege is broader than the duty of confidentiality
• c.The two are identical in scope
• d.The duty of confidentiality applies only to statements made in court

The comment to Rule 1.6 explains that the confidentiality rule "applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." The privilege applies when evidence is sought from the lawyer by compulsion.

Under Model Rule 1.6(b), a lawyer is permitted to reveal client information to the extent reasonably necessary to:

• a.Satisfy the curiosity of a third party
• b.Prevent reasonably certain death✓
• c.Win any case for the client
• d.Advance the lawyer's business interests

Rule 1.6(b)(1) permits disclosure "to prevent reasonably certain death or substantial bodily harm." None of the other purposes is an exception to confidentiality.

Under Model Rule 1.1, competent representation requires:

• a.A guarantee that the client will win
• b.Board certification as a specialist
• c.The knowledge, skill, and preparation reasonably necessary✓
• d.At least ten years of experience in the field

Rule 1.1 says "competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." The comment adds that a lawyer need not have special training or prior experience.

A lawyer violates a Rule of Professional Conduct. Under the Scope section of the Model Rules, that violation:

• a.Requires the client to be paid treble damages
• b.Does not by itself create a cause of action✓
• c.Bars the client from ever suing the lawyer
• d.Automatically establishes civil malpractice liability

The Scope section states that "violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached," though a violation may be evidence of the standard of conduct and may lead to discipline.

Under the Model Code of Judicial Conduct, a judge must disqualify from a proceeding when:

• a.The judge's impartiality might reasonably be questioned✓
• b.The case is expected to be time-consuming
• c.One party is self-represented
• d.The judge dislikes one lawyer's style of argument

Rule 2.11(A) requires disqualification "in any proceeding in which the judge's impartiality might reasonably be questioned," including personal bias concerning a party or a party's lawyer and certain economic interests. Mere dislike of a lawyer's argument style does not meet that test.

Under Model Rule 7.1, a lawyer's advertisement is improper if it:

• a.States the lawyer's areas of practice
• b.Includes the lawyer's photograph
• c.Is false or misleading✓
• d.Lists the lawyer's office hours and fees

Rule 7.1 forbids "a false or misleading communication about the lawyer or the lawyer's services," including a material misrepresentation or an omission that makes the communication materially misleading. Photographs, practice areas, hours, and fees are permitted content.

Under Model Rule 7.3, a lawyer generally may NOT use live person-to-person solicitation for pecuniary gain when the person solicited is:

• a.A stranger injured in a recent accident✓
• b.Another lawyer
• c.A former client of the lawyer
• d.A close personal friend of the lawyer

Rule 7.3(b) bars live person-to-person solicitation for pecuniary gain unless the contact is with a lawyer; a person with "a family, close personal, or prior business or professional relationship" with the lawyer; or a routine business user of such services. A stranger fits none of these.

Under the no-contact rule of Model Rule 4.2, a lawyer representing a client in a matter must NOT, without the other lawyer's consent:

• a.Send a settlement demand to opposing counsel
• b.Discuss the matter with the represented opposing party✓
• c.Speak with the lawyer's own client about the matter
• d.Interview a willing, unrepresented eyewitness

Rule 4.2 forbids communicating "about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter" without that lawyer's consent or legal authorization.

Under Model Rule 1.15, a lawyer who receives funds belonging to a client must:

• a.Keep them in cash in the office safe
• b.Deposit them in the lawyer's personal account for convenience
• c.Keep them in a separate trust account✓
• d.Use them immediately to cover firm operating expenses

Rule 1.15(a) requires client property to be held "separate from the lawyer's own property," with funds "kept in a separate account." Using, commingling, or keeping client money in cash violates the rule.

Under Model Rule 3.8, a prosecutor has a special duty to:

• a.Prosecute every charge the police request
• b.Obtain a conviction by any lawful means
• c.Timely disclose evidence that tends to negate guilt✓
• d.Refuse to disclose favorable evidence until after trial

Rule 3.8(d) requires "timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense." The comment calls the prosecutor "a minister of justice and not simply that of an advocate."

Under Model Rule 6.1, a lawyer's responsibility to provide pro bono legal services is best described as:

• a.An obligation that applies only to lawyers in private firms
• b.A duty owed only to existing paying clients
• c.An aspiration every lawyer should work toward✓
• d.A strictly enforced requirement whose violation results in disbarment

Rule 6.1 says "every lawyer has a professional responsibility to provide legal services to those unable to pay" and "should aspire to render at least (50) hours" a year. It is not enforced through discipline.

Which conflict can NOT be cured by the clients' informed consent under Model Rule 1.7?

• a.A lawyer representing two co-plaintiffs with different injuries
• b.A lawyer suing a current client in an unrelated matter
• c.Representing both sides of one lawsuit✓
• d.A lawyer whose spouse works for the opposing party's company

Rule 1.7(b)(3) bars representation involving "the assertion of a claim by one client against another client represented by the lawyer in the same litigation," and the comment says this applies "regardless of the clients' consent." The other situations can be consentable.

A lawyer obtains a client's oral informed consent to a conflict at a meeting and emails the client a summary of that consent the same afternoon. Has the lawyer satisfied the "confirmed in writing" requirement of Rule 1.7?

• a.No, because email is not a writing.
• b.Yes, but only if the client replies to the email.
• c.No, because the client must sign a consent form.
• d.Yes, a prompt written confirmation suffices.✓

Rule 1.0(b) defines "confirmed in writing" to include "a writing that a lawyer promptly transmits to the person confirming an oral informed consent," and Rule 1.0(n) says a writing includes an electronic record. No signature is required.

A lawyer represents a driver in a traffic case and is asked to cross-examine that driver, as an adverse witness, in an unrelated civil trial for another client. What is the best description of the situation?

• a.A likely concurrent conflict that Rule 1.7 governs.✓
• b.A conflict that only the court can resolve.
• c.A former-client conflict under Rule 1.9.
• d.No conflict, because the matters are unrelated.

Rule 1.7(a) defines a concurrent conflict to include direct adversity to a current client and a significant risk of material limitation. The comment notes that loyalty forbids acting as an advocate against a current client "even when the matters are wholly unrelated." The driver is a current client, so Rule 1.9 does not apply.

Two siblings ask a lawyer to draft a partnership agreement for a bakery they will co-own. Their goals are compatible, though they disagree on who will manage it. May the lawyer represent both?

• a.No, because multiple clients may never be represented in one transaction.
• b.No, because a lawyer must always choose one sibling.
• c.Yes, without consent, because they are family.
• d.Yes, with each one's informed consent, confirmed in writing.✓

Joint representation is permitted when the lawyer reasonably believes both can be represented competently and each client gives informed consent confirmed in writing under Rule 1.7(b). The comment warns that such clients should be told that privilege will not protect their communications from each other if they later litigate.

Under Rule 1.8(k), which prohibition that applies to one lawyer in a firm does NOT automatically apply to the other lawyers?

• a.The prohibition on business transactions with clients
• b.The prohibition on sexual relations with a client✓
• c.The prohibition on acquiring an interest in litigation
• d.The prohibition on drafting instruments that give the lawyer gifts

Rule 1.8(k) extends only "a prohibition in the foregoing paragraphs (a) through (i)" to all lawyers in a firm. The sexual-relations bar is in paragraph (j), so it is personal to the lawyer involved.

A client asks her lawyer, who is not related to her, to draft a will leaving the lawyer's daughter $25,000. What may the lawyer do?

• a.Draft it if the daughter is over eighteen.
• b.Decline to draft it, because the daughter is related to the lawyer.✓
• c.Draft it, because the gift goes to the daughter, not the lawyer.
• d.Draft it if the client signs a written waiver.

Rule 1.8(c) forbids preparing 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." A lawyer's child is a related person.

A lawyer represents a client in a slip-and-fall case on contingency. The client needs $1,500 for an expert's deposition fee. May the lawyer advance it?

• a.No, unless the client is indigent.
• b.Yes, but only if the client repays it regardless of outcome.
• c.No, because a lawyer may never give financial assistance to a litigation client.
• d.Yes, and repayment may depend on the outcome of the case.✓

Rule 1.8(e)(1) lets a lawyer "advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter." Expert fees are litigation expenses; indigence is required only for paying costs outright under 1.8(e)(2).

A lawyer represented a hospital two years ago in defending a malpractice claim and learned its internal peer-review practices. A patient now asks the lawyer to sue the same hospital in a new malpractice case raising similar peer-review failures. What governs?

• a.No rule, because the first case is closed.
• b.Rule 1.18, because the hospital was a prospective client.
• c.Rule 1.7, because the hospital is still a client.
• d.Rule 1.9's substantial-relationship test.✓

Rule 1.9(a) protects former clients in "the same or a substantially related matter," and the comment defines substantial relationship by whether confidential information "as would normally have been obtained in the prior representation would materially advance the client's position." The peer-review knowledge may make these substantially related.

A lawyer who has left Firm A joins Firm B. At Firm A she never worked on, or learned anything about, Firm A's representation of Delta Corp. Firm B now wants her to help sue Delta in that same matter. Is she personally disqualified?

• a.Yes, unless Firm A consents.
• b.No, because she learned nothing protected about Delta.✓
• c.Yes, because her former firm represented Delta in the matter.
• d.No, because conflicts never follow lawyers between firms.

Rule 1.9(b) disqualifies a lawyer whose former firm represented a client only if the lawyer "had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter." Without such information she is not disqualified.

A prospective client meets a lawyer for ten minutes to describe a contract dispute. The lawyer asks only for the parties' names and the general nature of the dispute, then declines. Later the other party asks the lawyer to represent it in the dispute. May the lawyer?

• a.Yes, if nothing significantly harmful was disclosed.✓
• b.Yes, because no fee was paid.
• c.No, unless the prospective client consents in writing.
• d.No, because any consultation disqualifies the lawyer.

Rule 1.18(c) disqualifies a lawyer only if he "received information from the prospective client that could be significantly harmful to that person in the matter." Names and a general description, gathered to check conflicts, ordinarily do not meet that test.

Under Rule 1.10, which of these situations is NOT imputed to the other lawyers in the firm?

• a.A lawyer's purely personal conflict that does not limit others.✓
• b.A partner's conflict from representing the opposing party last year in the same case.
• c.An associate's conflict from currently representing the opposing party in another matter.
• d.A lawyer's conflict from a current client relationship with a party.

Rule 1.10(a)(1) does not impute a prohibition "based on a personal interest of the disqualified lawyer" that "does not present a significant risk of materially limiting the representation" by the others. Conflicts arising from other clients, current or former, are imputed.

After a partner who handled a matter for Client X leaves the firm, the firm wants to sue Client X, no longer its client, in a substantially related matter. No remaining lawyer has material confidential information about X. May the firm proceed?

• a.No, because the firm once represented X in a related matter.
• b.Yes, because the departed partner's conflict never applied to the firm.
• c.No, unless the departed partner consents.
• d.Yes, because no remaining lawyer has material protected information.✓

Rule 1.10(b) lets the firm proceed after the lawyer leaves unless the matter is the same or substantially related "and" a remaining lawyer "has information protected by Rules 1.6 and 1.9(c) that is material to the matter." Both conditions must be met to bar the firm.

A former judge's new firm wants to represent a party in a case the judge presided over. What does Rule 1.12 require for the firm to proceed without all parties' consent?

• a.A timely screen, no fee share, and prompt notice.✓
• b.A court order approving the representation.
• c.The judge's written promise not to discuss the case.
• d.Nothing, because the judge has retired from the bench.

Rule 1.12(c) lets the firm proceed if "the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom" and "written notice is promptly given to the parties and any appropriate tribunal."

A law clerk working on a pending case wants to interview with the firm representing one of the parties. What must the clerk do first?

• a.Wait until the case is over.
• b.Obtain consent from all parties.
• c.Nothing, because clerks do not decide cases.
• d.Notify the judge she works for.✓

Rule 1.12(b) allows a law clerk to "negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge." Judges and neutrals themselves may not negotiate.

An employer pays for a lawyer to defend its employee in a lawsuit. Which condition is required by Rule 1.8(f)?

• a.The lawyer must represent the employer too.
• b.The employer must receive copies of all client communications.
• c.The employer must approve all settlement decisions.
• d.The employee must give informed consent to the arrangement.✓

Rule 1.8(f) permits compensation from a third party only if "the client gives informed consent," there is "no interference with the lawyer's independence of professional judgment," and client information is protected under Rule 1.6. The payer gets no control or access by paying.

Which decision belongs to the lawyer rather than the client, after consultation?

• a.Whether to accept a settlement offer in a civil case
• b.Whether to waive a jury in a criminal case
• c.Whether a criminal defendant will testify
• d.Which witnesses to call at trial✓

Rule 1.2(a) reserves to the client the decision "whether to settle a matter" and, in criminal cases, the plea, jury waiver, and "whether the client will testify." The comment says clients normally defer to lawyers on "technical, legal and tactical matters," such as which witnesses to call.

A client authorizes her lawyer, at the start of a case, to accept any settlement of $80,000 or more. Months later, with nothing changed, the defendant offers $85,000. May the lawyer accept without calling her?

• a.No, because settlement authority expires after 30 days.
• b.No, because every offer must be conveyed before acceptance.
• c.Yes, under the advance authorization.✓
• d.Yes, but only if the offer is in writing.

The comment to Rule 1.2 says a client "may authorize the lawyer to take specific action on the client's behalf without further consultation," and absent a material change "a lawyer may rely on such an advance authorization." The client may revoke it at any time.

A lawyer agrees to review only a client's proposed employment contract for a flat fee, not to negotiate it. What makes this limited scope proper?

• a.Approval from the state bar.
• b.A fee under a set dollar amount.
• c.Reasonableness plus informed consent.✓
• d.A signed writing describing the limitation.

Rule 1.2(c) permits limiting scope "if the limitation is reasonable under the circumstances and the client gives informed consent." The rule itself does not require a signed writing.