MCQ 2: Special Roles for Lawyers

Question 1

when does the Bronston “literal truth” defense apply?

Answer 1

where a defendant’s allegedly false statements are indisputably literally true

Question 2

when does paragraph (d) of 1.13 kick in?

Answer 2

once the attorney fulfilled his obligation in (c)

Question 3

if the lawyer is given tangible evidence by someone who is NOT his client, does he have to turn it over to authorities and say where it came from?

Answer 3

if the evidence is from a non-client and it’s in the lawyer’s possession, he DOES have to turn over the evidence and say where it came from because the person is not protected by A/C privilege

Question 4

under 4.1(b) what are the exceptions to confidentiality under 1.6?

Answer 4

1) to prevent a client fraud or crime that will cause “substantial financial injury” to a third person if the client used the lawyer’s services in committing the misconduct
2) fraud already happened but the injury can be prevented, mitigated or rectified
3) comply with law or court order

Question 5

According to Rule 2.3, what do judges require lawyers in proceedings before the court to refrain from?

Answer 5

manifesting bias or prejudice or engaging in harassment

Question 6

when a client is representing a corporation who is the client?

Answer 6

the corporation itself, not anyone who works for it or even runs it

Question 7

what should a lawyer do under paragraph (c) of 1.13?

Answer 7

go up as high as they can and try to stop or address the issue, free from confidentiality

Question 8

can the lawyer discuss any possible consequences of proposed conduct of a client that might be criminal or fraudulent?

Answer 8

Yes

Question 9

Generally, what can the smallest amount of obstruction interference with the courts, grand juries or enforcement agency lead to?

Answer 9

years, even decades in prison, even if effort fails

Question 10

what are 3 categories of issues imposed by possession of real evidence?

Answer 10

1) ethical obligations of the lawyer - 3.4(a)
2) requirements of criminal law
3) A/C privilege

Question 11

what must an attorney be sure of when it comes to clients lying?

Answer 11

he must KNOW that he is going to lie (NIX)

Question 12

according to THUL what should lawyers be sanctioned for?

Answer 12

for not citing case law

Question 13

if you can’t persuade your client not to commit perjury what is the 2nd best option?

Answer 13

take the “narrative” approach where the client tells the story as a narrative, not as regular testimony and the client ignores what the client says for the rest of the case

Question 14

is threatening criminal prosecution as a negotiating tactic allowed?

Answer 14

in the earlier version of the model code it was but the newer version removed that prohibition

Question 15

what is liability for a lawyer based on?

Answer 15

statements/representations (or silence)

Question 16

when may representation of one client forbid the law firm from representing an affiliate of the client?

Answer 16

1) client and lawyer agree that affiliates are clients of the firm (only factor that’s dispositive)
2) two companies operate as “alter egos”
3) two companies have integrated operations and management
4) same in-house legal staff handles matters for both companies

Question 17

According to rule 8.4, when is the lawyer engaging in professional misconduct?

Answer 17

when they are conducting anything involving dishonesty, fraud, deceit or misrepresentation

Question 18

after (d) and the client is sued or indicted what does the attorney return to?

Answer 18

having attorney/client privilege

Question 19

is there privilege for employees of a corporation that the attorney is representing if the attorney told the employees that they’re not representing them?

Answer 19

no

Question 20

can a lawyer counsel a client that they KNOW is criminal or fraudulent?

Answer 20

NO

Question 21

what is the 5 part test to determine when the privilege applies to employees and not just the corporation:

Answer 21

1) must show that the employee approached counsel seeking legal advice
2) the employee made it clear that they were seeking representation in their individual and not corporate capacity
3) lawyer communicated with the employee in their individual capacity
4) conversations with counsel were confidential
5) conversation did not involve general affairs of the corporation

Question 22

what is the duty of the lawyer to the client limited to?

Answer 22

legitimate, lawful conduct (NIX)

Question 23

if a lawyer is told about tangible evidence by his client and it is not in his possession does the lawyer have to alert authorities and say where the information came from?

Answer 23

the lawyer does not have to report the evidence to authorities because it is not in his possession and he does not have to say where the information came from due to A/C privilege

Question 24

what must a lawyer’s knowledge of falsity be based on?

Answer 24

the client’s express admission of intent to lie (McDowell) (Best Rule)

Question 25

is the representation actionable if representation is not an expression of pure legal opinion…but rather a statement implying facts that support a legal opinion?

Answer 25

yes

Question 26

May a lawyer counsel a client to engage in conduct that the lawyer knows is fraudulent or criminal?

Answer 26

no MC 1.2(d)

Question 27

what must a client show if they suspect that a client is lying?

Answer 27

evidence (RIEL)

Question 28

what type of concurrent conflict of interests can occur when representing an entity client?

Answer 28

1) representation of one client can be adverse to another client
2) significant risk that representation can materially limited by a lawyer’s responsibility to another client, a former client or a third party

Question 29

what is a lawyer supposed to do if they KNOW that their client is going to engage in criminal or fraudulent behavior?

Answer 29

withdraw before the client does the behavior (or immediately upon learning about it)

Question 30

Under rule 3.3, what should a lawyer refrain from doing in the tribunal?

Answer 30

not knowingly:

1) make a false statement of fact or law or fail to correct a false statement
2) failure 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
3) offer evidence that the lawyer knows is false

Question 31

what are the 3 components of the BRADY violation?

Answer 31

1) evidence at issue must be favorable to the accused
2) evidence must have been suppressed by the state
3) prejudice must have been ensued

Question 32

what can a lawyer do when a client is going to engage in conduct that the lawyer knows is fraudulent or criminal?

Answer 32

he discuss the legal consequences of any proposed conduct MC 1.2(d)

Question 33

what is the “bad client” problem?

Answer 33

when you’re representing a client engaged in fraud or some other type of falsity or misrepresentation

Question 34

under rule 8.4 what is considered professional misconduct for a lawyer?

Answer 34

1) to violate or attempt to violate the Rule of Professional Conduct or knowingly assist another to do so
2) engage in conduct involving dishonesty, fraud, deceit or misrepresentation

Question 35

what do some potential sanctions of spoliation include?

Answer 35

1) dismissal of claim
2) granting judgment for prejudiced party
3) suppression of evidence
4) adverse inference
5) fines
6) attorney fees and costs

Question 36

besides being sanctioned for destroying evidence relevant to a legal action, what else can the lawyer be sanctioned for?

Answer 36

not preserving evidence that is likely to be relevant to future actions (BASF CATALYSTS)

Question 37

if a lawyer is given tangible evidence by their client and they take it into their possession, are they obligated to turn it over to authorities and do they have to say where the evidence came from?

Answer 37

If the evidence is in their possession, they DO have to turn it over but they CANNOT reveal who it came from due to A/C privilege

Question 38

what happens if nothing is done under (d)?

Answer 38

(c) picks back up

Question 39

According to 3.3 what can a lawyer not do?

Answer 39

1) make a false statement of fact or law or fail to correct a false statement of material fact
2) fail to disclose to the legal authorities in the jurisdiction any adverse to the position of the client and not disclosed by opposing counsel
3) offer evidence that the lawyer knows to be false

Question 40

if the lawyer is the one that commits the wrongdoing during the trial, is there a protection of A/C privilege?

Answer 40

no (RYDER)

Question 41

what are the best option if a lawyer becomes aware that their client is about to commit perjury?

Answer 41

try to persuade the client not to

Question 42

what can a client offer when discussing possible legal consequences of proposed conduct that might be criminal or fraudulent?

Answer 42

good faith effort to determine the validity, scope, meaning or application of the law

Question 43

what factors should be considered when determining duty/options of the lawyer in possession of tangible evidence that may be relevant to a criminal investigation?

Answer 43

1) A/C privilege
2) Client’s fifth and sixth Amendment rights
3) protection from criminal prosecution for lawyer
4) state’s interest in investigating and prosecuting a crime
5) right of owner of property to get it back
6) public safety

Question 44

under rule 4.1, what can a lawyer NOT KNOWINGLY do?

Answer 44

1) make a false statement of material fact or law to a third person
2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client (unless prohibited by 1.6)

Question 45

when information is given that’s not from your client (and not protected by A/C privilege) but it will hurt your client do you have to reveal it?

Answer 45

yes

Question 46

when a company changes hands, does the A/C privilege transfer?

Answer 46

depends on the practical consequences rather than the formalities of the particular transaction

Question 47

what must an attorney do about past testimony that was (demonstrably) false?

Answer 47

they must disclose

Question 48

what may false statements also constitute?

Answer 48

discovery violations leading to the lawyer or client being held in contempt (Jones v. Clinton)