MPRE — Multistate Professional Responsibility Exam — All Questions

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.

Which statement about Model Rule 3.1 is correct?

• a.A lawyer may file any claim the client requests.
• b.A good-faith argument to change law is not frivolous.✓
• c.Criminal defense lawyers must present an affirmative defense.
• d.A claim is frivolous if the lawyer expects to lose.

Rule 3.1 allows claims with a basis "that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law," and lets criminal defense counsel require "that every element of the case be established."

A lawyer requests three continuances in a routine case solely because his client benefits financially from delaying payment of the judgment. Is this proper under Rule 3.2?

• a.No, because continuances are never allowed.
• b.Yes, because courts often tolerate continuances.
• c.Yes, because it serves the client's interest.
• d.No, because profiting from delay is not a legitimate interest.✓

The comment to Rule 3.2 says "realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client," and that "it is not a justification that similar conduct is often tolerated by the bench and bar."

In a hearing, a lawyer mistakenly tells the judge that a deadline was met. He later realizes the statement was false. What must he do?

• a.Nothing, because the misstatement was unintentional.
• b.Withdraw from the case.
• c.Correct the false statement to the tribunal.✓
• d.Correct it only if opposing counsel raises it.

Rule 3.3(a)(1) forbids knowingly failing "to correct a false statement of material fact or law previously made to the tribunal by the lawyer." Once he knows it is false, the duty to correct arises even though the original statement was an honest mistake.

How long do the candor duties of Rule 3.3(a) and (b) last?

• a.Until the lawyer withdraws.
• b.To the end of the proceeding.✓
• c.For the lawyer's entire career.
• d.Until the jury returns its verdict.

Rule 3.3(c) says the duties "continue to the conclusion of the proceeding," and the comment explains that a proceeding concludes "when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed."

A civil plaintiff's lawyer reasonably believes, but does not know, that a friendly witness will exaggerate. May the lawyer decline to call the witness?

• a.No, because only known falsehoods may be excluded.
• b.Yes, if he reasonably believes it is false.✓
• c.Yes, but only with the court's permission.
• d.No, because the client decides which witnesses testify.

Rule 3.3(a)(3) provides that "a lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false." The exception for criminal defendants does not apply to a civil witness.

During trial, a lawyer learns that her client paid a juror's brother to influence the juror. What does Rule 3.3(b) require?

• a.Remedial measures, including disclosure if needed.✓
• b.A report to the bar, but not the court.
• c.Only withdrawal from the case.
• d.Nothing, because the information is confidential.

Rule 3.3(b) requires a lawyer who knows a person "has engaged in criminal or fraudulent conduct related to the proceeding" to "take reasonable remedial measures, including, if necessary, disclosure to the tribunal," and 3.3(c) applies this even to Rule 1.6 information.

In a pretrial discovery dispute, a lawyer serves 400 document requests on a small business, most unrelated to the claims, to pressure it to settle. Which rule most directly applies?

• a.Rule 3.4(d), discovery abuse.✓
• b.Rule 3.6, trial publicity.
• c.Rule 3.3, candor to the tribunal.
• d.Rule 3.7, lawyer as witness.

Rule 3.4(d) forbids a lawyer "in pretrial procedure" to "make a frivolous discovery request." Rule 4.4(a) also bars means with no substantial purpose other than to burden a third person.

In closing argument in a civil case, which statement by counsel is proper?

• a."I personally believe the defendant is lying."
• b."The evidence shows the defendant's story does not add up."✓
• c."I know from my own experience this product is dangerous."
• d."I guarantee you my client deserves to win."

Rule 3.4(e) forbids asserting "personal knowledge of facts in issue" or stating "a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant." Arguing from the evidence is proper.

A lawyer sends a judge a holiday gift basket while a case the lawyer is handling is pending before her, hoping for goodwill. Which rule does this most directly implicate?

• a.Rule 1.8, gifts from clients.
• b.Rule 3.5(a), improper influence on a judge.✓
• c.Rule 3.1, meritorious claims.
• d.Rule 7.2, paying for recommendations.

Rule 3.5(a) forbids seeking "to influence a judge, juror, prospective juror or other official by means prohibited by law," and Rule 8.4(f) forbids helping a judge violate the judicial code's gift rules.

Which statement may a lawyer involved in a pending criminal case make to the press, notwithstanding Rule 3.6(a)?

• a.The fact, time, and place of the arrest.✓
• b.The defendant failed a lie-detector test.
• c.The defendant has a prior conviction.
• d.The lawyer's opinion that the defendant is guilty.

Rule 3.6(b)(7) lists, in a criminal case, "the fact, time and place of arrest" among permitted statements. Test results, criminal records, and opinions on guilt are on the comment's list of subjects likely to be prejudicial.

A lawyer's partner is likely to be a necessary witness at trial, and the testimony will not conflict with the client's interests. May the lawyer try the case?

• a.Yes, absent a conflict of interest.✓
• b.No, because the whole firm is disqualified.
• c.No, unless the partner's testimony is uncontested.
• d.Yes, but only if the client consents in writing.

Rule 3.7(b) provides that "a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9."

A lawyer's testimony would concern only the amount and value of legal fees in a fee-shifting case. May the lawyer also act as trial advocate?

• a.Yes, but only if the fee is under $10,000.
• b.No, because a lawyer may never testify in her own case.
• c.No, unless the court appoints co-counsel.
• d.Yes, because it concerns the value of her legal services.✓

Rule 3.7(a)(2) permits a lawyer to act as advocate when "the testimony relates to the nature and value of legal services rendered in the case."

Under FRCP 11, what does a lawyer certify by signing a pleading?

• a.That every fact has already been proved.
• b.That it has a proper purpose, after reasonable inquiry.✓
• c.That opposing counsel has been consulted.
• d.That the client will win.

Rule 11(b) certifies, "formed after an inquiry reasonable under the circumstances," that the paper is not presented for "any improper purpose," that its legal contentions are warranted, and that factual contentions have or will likely have evidentiary support.