PR

Question 1

A lawyer finds out that his opposing counsel in a matter has committed a violation of the Rules of Professional Conduct that raises a substantial question as to his honesty or fitness as a lawyer in other respects. Under ____________________, the lawyer ____________________ inform the appropriate authority.

A. The California Rules; must.
B. The ABA Rules; may (but is not required to).
C. The ABA Rules; must.
D. The ABA Rules and the California Rules; must.

Answer 1

C. The ABA Rules; must.

Under the ABA Rules, a lawyer having knowledge that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer’s honesty or fitness as a lawyer in other respects must inform the appropriate professional authority. (However, this rule does not require disclosure of confidential information or information gained while participating in an approved lawyers’ assistance program dealing with substance abuse problems.) Note that there is no corresponding California rule. Thus, C. is the correct answer.

Recommended Activity: Read CA Professional Responsibility VIII.G. Reporting Professional Misconduct

Question 2

Which of the following statements best explains a public prosecutor’s duty to disclose information that tends to exculpate the accused?

A. The prosecutor must disclose all such evidence to the defense.
B. The prosecutor must disclose such information only to the extent that the defense has formally requested it.
C. The prosecutor must disclose such information to the court only.
D. The prosecutor may choose not to disclose the information if he reasonably believes that the defendant is guilty.

Answer 2

A. The prosecutor must disclose all such evidence to the defense.

A prosecutor in a criminal case must make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense. Thus, A. is correct.

Recommended Activity: Read CA Professional Responsibility VIII.F. The Special Role of the Public Prosecutor

Question 3

Under the ABA Rules, withdrawal is mandatory (after obtaining court permission, if necessary) when (1) the lawyer has been discharged by the client; (2) the representation will result in a violation of the Rules of Professional Conduct or other law; or (3) ____________________.

A. The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.
B. The client has already used the lawyer’s services to perpetrate a crime or fraud.
C. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
D. The lawyer knows that the client is acting without probable cause and to harass or maliciously injure another person.

Answer 3

C. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

Under the ABA Rules, withdrawal is mandatory (after obtaining permission from the tribunal, if required by its rules) if: (i) the representation will result in violation of the RPC or other law; (ii) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (iii) the lawyer is discharged. Thus, C. is correct. The situations in A. and B. are grounds for permissive (not mandatory) withdrawal. The situation in D. is a ground for mandatory withdrawal in California, but not under the ABA Rules.

Recommended Activity: Read CA Professional Responsibility VII.B. Mandatory Withdrawal

Question 4

____________________ specifically forbid a lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute.

A. Both the ABA Rules and the California Rules.
B. Neither the ABA Rules nor the California Rules.
C. The ABA Rules.
D. The California Rules.

Answer 4

D. The California Rules.

The California Rules forbid a lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute. There is no corresponding prohibition in the ABA Rules; thus, D. is correct.

Recommended Activity: Read CA Professional Responsibility VI.F. Fairness to Opposing Party and Counsel

Question 5

A lawyer represents a client in a matter. An opposing party who has no counsel of his own, and whose interests are in direct conflict with the client’s interests, calls the lawyer and asks for legal advice. The lawyer:

A. Is absolutely prohibited from speaking with him directly.
B. May only advise the opposing party to obtain counsel.
C. May provide the advice only if she does not pretend to be disinterested.
D. May provide the advice only upon the consent of his client.

Answer 5

B. May only advise the opposing party to obtain counsel.

When a person does not have counsel of his own, a lawyer representing a client generally may communicate with such person directly as long as the lawyer must not state or imply that she is disinterested. However, if the lawyer knows or reasonably should know that the interests of the unrepresented person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client (as is the case here), the lawyer may only advise the unrepresented person to obtain counsel; no other legal advice is permitted. Thus, B. is correct and C. is wrong. A. is wrong because it is too broad. D. is wrong because the client’s consent is irrelevant.

Recommended Activity: Read CA Professional Responsibility VI.C. Transactions with Third Persons

Question 6

After a lawyer settles a matter for his client, the lawyer and client have a dispute over a portion of the settlement funds. What must the lawyer do, pending resolution of the dispute?

A. Distribute the undisputed portion to the client.
B. Distribute all of the funds to the client.
C. Keep all of the funds in the client trust account.
D. Keep the disputed portion in the lawyer’s personal account.

Answer 6

A. Distribute the undisputed portion to the client.

When in the course of representation a lawyer possesses property in which at least two persons (one of whom may be the lawyer) claim interests, such property must be kept separate by the lawyer until resolution of the dispute. The lawyer must promptly distribute all portions of the property that are not in dispute (because the lawyer must promptly deliver to the client any funds or other property that the client is entitled to receive). Thus, A. is correct and B. and C. are wrong. D. is wrong because the disputed funds should not be placed in the lawyer’s personal account; they should be kept in a trust account.

Recommended Activity: Read CA Professional Responsibility V.C. The Duty to Protect a Client’s Property

Question 7

A lawyer is prohibited from placing the following funds into a client’s trust account:

A. Fees that were paid by the client in advance.
B. His own personal funds, solely to pay bank service charges.
C. His own personal funds, solely for investment purposes.
D. Expenses that were paid by the client in advance.

Answer 7

C. His own personal funds, solely for investment purposes.

A lawyer must hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds must be kept in a separate client trust account. A lawyer must deposit into the account legal fees and expenses that were paid in advance, to be withdrawn only as fees are earned or expenses are incurred. Thus, A. and D. are wrong. B. is wrong because a lawyer may deposit her own funds in a client trust account solely to pay bank service charges. C. is correct because a lawyer is prohibited from placing personal funds in the client trust account for other reasons, such as for investment purposes.

Recommended Activity: Read CA Professional Responsibility V.C.1. Client Trust Account

Question 8

Under the ABA Rules, a lawyer is specifically permitted to disclose a client’s information in certain circumstances. Which of the following is NOT a recognized exception to the duty of confidentiality?

A. To obtain advice on how to comply with legal ethics rules.
B. To prevent a person’s reasonably certain imminent death.
C. To establish a defense in a malpractice claim against the lawyer.
D. To prevent a client from committing an act that the lawyer finds repugnant.

Answer 8

D. To prevent a client from committing an act that the lawyer finds repugnant.

Generally, a lawyer must not reveal information relating to the representation of a client. However, the ABA Rules recognize several exceptions in which a lawyer may reveal confidential information when reasonably necessary to achieve certain objectives, including (but not limited to) those listed in A., B., and C. The situation in D. is not recognized as an exception to the confidentiality rule.

Recommended Activity: Read CA Professional Responsibility V.B.2. Duty of Confidentiality

Question 9

A lawyer negligently fails to assert an obvious affirmative defense on behalf of his client. The lawyer is subject to discipline for violating his duty of competence:

A. Under the California Rules only.
B. Under the ABA Rules only.
C. Under the ABA Rules and the California Rules.
D. Under neither the ABA Rules nor the California Rules.

Answer 9

B. Under the ABA Rules only.

The ABA Rules provide that a lawyer must represent his client competently. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. The California Rule is narrower; it provides that a lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. Thus, a California lawyer generally is not subject to discipline under this rule for an isolated act of negligence. As such, B. is the correct answer.

Recommended Activity: Read CA Professional Responsibility V.A.1. Competent Representation

Question 10

Lawyer 1, who has no experience in personal injury law, refers a valuable case to Lawyer 2, a personal injury lawyer. Lawyer 2 wants to repay Lawyer 1’s kindness by giving him a referral fee. Referral fees of this type are:.

A. Generally permitted under the ABA Rules if the client consents and the fee is not unreasonable, but strictly prohibited by the California Rules.
B. Strictly prohibited by the ABA Rules and the California Rules.
C. Generally permitted by the California Rules if the client consents and the fee is not unconscionable.
D. Generally permitted by the ABA Rules and the California Rules if the client consents.

Answer 10

C. Generally permitted by the California Rules if the client consents and the fee is not unconscionable.

Referral fees are prohibited by the ABA Rules. (However, the ABA Rules provide that an attorney may ethically divide fees with an outside attorney if the division is in proportion to the services performed by each attorney or each attorney assumes joint responsibility for the representation. This clearly is not the case here because Lawyer 1 will have no role in the representation.) However, the California Rules permit an attorney to pay a referral fee (also called a forwarding fee) to an outside attorney who referred the case to her, provided that: (i) the client knows all the terms and consents in writing, and (ii) the total fee is not unconscionable and is not increased because of the referral fee. Thus, C. is the correct answer.

Recommended Activity: Read CA Professional Responsibility IV.F.5. Referral Fees Are Unethical

Question 11

In California, a written fee agreement is required in the following situation:

A. A lawyer intends to represent a corporation in a toxic tort case, and does not anticipate that the fees will exceed $10,000.
B. A lawyer intends to represent a client in filing partnership documents, and does not anticipate that the fees will exceed $600.
C. A lawyer intends to represent a long-time client in a trademark matter, and to charge the same $5,000 fee as in the previous 20 trademark matters for that client.
D. The lawyer intends to represent a client in an uncontested divorce, and does not anticipate that the fees will exceed $1,500.

Answer 11

D. The lawyer intends to represent a client in an uncontested divorce, and does not anticipate that the fees will exceed $1,500.

The ABA Rules recommend, but do not require, that a noncontingent fee be in writing. California requires a written fee agreement if the fee will exceed $1,000, except in the following situations: (i) the client is a corporation, (ii) the client states in writing that she does not want a written fee agreement, (iii) the legal services are the same kind of services that the client has previously received and paid for, (iv) the lawyer acted in an emergency to protect the client’s rights, or (v) a writing is impractical for other reasons. Here, A. is wrong because the client is a corporation. B. is wrong because the fee is well under $1,000. C. is wrong because the legal services are the same as have been previously provided to the client. D. is the only correct answer; the fee exceeds $1,000 and the situation does not fall within an exception to the writing requirement.

Recommended Activity: Read CA Professional Responsibility IV.F. Establishing Compensation for Legal Services

Question 12

Under the ABA Rules, a lawyer generally must not represent a client in connection with a matter in which the lawyer participated ____________________ as a government officer or employee, unless the appropriate government agency ____________________.

A. In any capacity; is notified.
B. Personally and substantially; is notified.
C. In any capacity; consents.
D. Personally and substantially; consents.

Answer 12

D. Personally and substantially; consents.

Under the ABA Rules, a lawyer generally must not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government officer or employee, unless the appropriate government agency consents. (California has no counterpart rule.) Note that a “matter” is one that involves specific parties—i.e., researching or drafting a statute is not considered a matter for conflicts purposes. Thus, D. is the correct answer.

Recommended Activity: Read CA Professional Responsibility IV.E.8. Special Conflicts Rules for Former and Current Government Officers and
Employees

Question 13

A lawyer works at a law firm. During that time, she represents a plaintiff in a personal injury case. No one else at the firm works on the case. The lawyer then moves to a new law firm, taking all of her cases with her. Under the ABA Rules, if the plaintiff’s consent cannot be obtained, under what circumstances may the lawyer’s original firm subsequently represent one of the defendants in the same personal injury case?

A. Only if no lawyer remaining at the original firm has any confidential information that is material to the matter.
B. Under no circumstances; this is absolutely prohibited.
C. This is permitted; no conflict of interest exists.
D. Only if the departed lawyer consents.

Answer 13

A. Only if no lawyer remaining at the original firm has any confidential information that is material to the matter.

The ABA Rules provide that when a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm unless: (i) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (ii) any lawyer remaining in the firm has information protected by RPC 1.6 (relating to confidentiality) and RPC 1.9(c) (relating to using or revealing information pertaining to the representation) that is material to the matter. Here, the original firm wants to represent an opposing party of the lawyer’s client in the same personal injury case. Under this rule, they may do so only if no remaining lawyer at the firm has confidential information about the matter; thus, A. is correct and B. and C. are wrong. D. is wrong because the departed lawyer’s consent is irrelevant.

Recommended Activity: Read CA Professional Responsibility IV.E.7. Conflicts When a Lawyer Leaves a Firm

Question 14

A wife has a lengthy consultation with a lawyer in which she discloses sensitive information about her impending divorce case. The wife ultimately decides not to hire the lawyer. Under the ABA Rules (and generally under California law), which statement is true regarding the lawyer’s responsibilities to the wife?

A. The lawyer’s duty of confidentiality applies to information gained during the consultation.
B. The lawyer may represent the husband in the divorce case without restriction.
C. Other attorneys in the lawyer’s firm may represent the husband in the divorce case without restriction.
D. The lawyer may represent the husband in the divorce case as long as the husband is told about the consultation and provides informed consent.

Answer 14

A. The lawyer’s duty of confidentiality applies to information gained during the consultation.

A. is correct because a lawyer’s ethical duty of confidentiality applies with respect to consultations with a prospective client. Furthermore, a lawyer who gains confidential information during a consultation with a prospective client must not later represent a different person with interests materially adverse to those of the prospective client, in the same or a substantially related matter, if the confidential information could significantly harm the prospective client. The conflict may be cured with informed consent from both the current and prospective client. Thus, B. is wrong because representing the husband in the same divorce case is a conflict of interest, and D. is wrong because the wife’s consent would also be needed to overcome the conflict. C. is wrong because the lawyer’s conflict is imputed to others at his firm (although it may be overcome with consent from both the affected and prospective clients, or, under the ABA Rules, by screening the disqualified lawyer and providing notice to the prospective client).

Recommended Activity: Read CA Professional Responsibility IV.E.4. Conflicts Stemming from Prospective Clients

Question 15

A lawyer who formerly represented Former Client in a matter may not thereafter represent Current Client adverse to Former Client in:

A. Any matter, unless Former Client consents.
B. The same matter or a substantially related matter, unless Former Client consents.
C. The same matter, unless Current Client consents.
D. The same matter or a substantially related matter, regardless of whether Former Client consents.

Answer 15

B. The same matter or a substantially related matter, unless Former Client consents.

A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter if that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent. B. is correct because the prohibition applies to the same matter or a substantially related matter, and because the former client’s informed consent will cure the conflict. Note that as a general rule, a lawyer also is prohibited from revealing a former client’s information or using such information to the former client’s disadvantage.

Recommended Activity: Read CA Professional Responsibility IV.E.3. Conflicts of Interest Regarding Former Clients

Question 16

Which of the following sexual relationships between a lawyer and client is NOT specifically prohibited by the California Rules of Professional Conduct?

A. The relationship started after the commencement of the representation.
B. The relationship started after the attorney informed the client that he would represent her if she engaged in a sexual relationship with him.
C. The lawyer coerced the client to consent to the sexual relationship.
D. Because of the relationship, the lawyer incompetently represented the client.

Answer 16

A. The relationship started after the commencement of the representation.

Unlike the ABA Rules, which prohibit all lawyer-client sexual relationships that do not predate the representation, California does not prohibit sexual relationships between lawyer and client unless the lawyer: (i) demands sexual relations with the client as a condition of professional representation, (ii) enters into sexual relations with the client by coercion or undue influence, or (iii) represents the client incompetently because of the sexual relationship.

Recommended Activity: Read CA Professional Responsibility IV.E.1.c. Specific Kinds of Conflicts

Question 17

Under the ABA Rules, a lawyer engaging in a consensual sexual relationship with his client is subject to discipline:

A. Regardless of the circumstances.
B. Unless the relationship existed prior to the representation.
C. Unless the client initiated the relationship.
D. Only if the relationship substantially affects the representation.

Answer 17

B. Unless the relationship existed prior to the representation.

Under the ABA Rules, a lawyer must not have a sexual relationship with a client; the sole exception is when the lawyer and client had a consensual sexual relationship before the lawyer-client relationship began. Thus, B. is correct and A. is wrong. C. and D. are wrong because the prohibition on engaging in a sexual relationship with a client applies even if the client initiated the relationship, and even if the client is not harmed.

Recommended Activity: Read CA Professional Responsibility IV.E.1.c. Specific Kinds of Conflicts

Question 18

Under the California Rules, which event must occur before a lawyer may make an agreement with a client prospectively limiting the lawyer’s malpractice liability?

A. The client must be represented by independent counsel.
B. The lawyer must inform the client in writing that seeking independent counsel is desirable.
C. None; this type of agreement is always prohibited.
D. None; this type of agreement is generally permitted.

Answer 18

C. None; this type of agreement is always prohibited.

Under the ABA Rules, a lawyer must not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement. However, California does not allow a lawyer to prospectively limit liability in any circumstance. Thus, C. is correct and the other choices are wrong. (Note that a lawyer settling an existing claim or potential claim for malpractice liability with an unrepresented client or former client meets his ethical obligation by advising the person in writing that independent counsel is desirable.)

Recommended Activity: Read CA Professional Responsibility IV.E.1.c. Specific Kinds of Conflicts

Question 19

Under the California Rules, a lawyer ____________________ lend his client money for personal purposes unrelated to the representation ____________________.

A. May not; unless the client is indigent.
B. May; without restriction.
C. May not; under any circumstances.
D. May; if the client gives the lawyer a written promise to repay the loan.

Answer 19

D. May; if the client gives the lawyer a written promise to repay the loan.

Under the ABA Rule, a lawyer generally must not provide financial assistance to a client in connection with pending or contemplated litigation. However, (i) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter (i.e., the lawyer and client may agree that if the client loses his case, he need not repay the funds); and (ii) a lawyer representing an indigent client can pay the client’s court costs and litigation expenses. The California Rule is similar, but it is different in three other respects: (i) the California rule applies in all contexts, not just litigation; (ii) the California rule prohibits a lawyer from “buying” a potential client with a promise to pay the potential client’s personal or business debts; and (iii) after the lawyer is hired, he may lend the client money for any purpose if the client gives him a written promise to repay the loan. Thus, under the California Rules, D. is the correct answer.

Recommended Activity: Read CA Professional Responsibility IV.E.1.c. Specific Kinds of Conflicts

Question 20

Under the ABA Rules, under what circumstances may a lawyer draft a will that reflects the client’s intent to leave a large financial gift to the lawyer?

A. None; this is always forbidden.
B. If the lawyer and the client are members of the same immediate family.
C. If the client is also a lawyer.
D. If the client understands the inherent conflict of interest in the representation and provides informed consent.

Answer 20

B. If the lawyer and the client are members of the same immediate family.

Under the ABA Rules, a lawyer must not solicit a substantial gift from a client or prepare an instrument giving the lawyer, or a person related to the lawyer, any substantial gift from a client except when the client is related to the donee. (Note that the California counterpart prohibits the lawyer from inducing the gift, not preparing the instrument.) Thus, B. is correct and A. is wrong. C. is wrong because there must be a family relationship; whether the client is also a lawyer makes no difference. D. is wrong because consent will not cure the conflict.

Recommended Activity: Read CA Professional Responsibility IV.E.1.c. Specific Kinds of Conflicts

Question 21

The following conditions MUST be satisfied for a lawyer to properly enter into a business transaction with his client, EXCEPT:

A. The client seeks the advice of independent legal counsel.
B. The client gives informed consent in a signed writing.
C. The terms of the transaction are fair to the client.
D. The terms of the transaction are transmitted in writing to the client.

Answer 21

A. The client seeks the advice of independent legal counsel.

A lawyer must not enter into a business transaction with a client unless: (i) the transaction and terms under which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (ii) the client is informed in writing of the desirability of seeking, and is given a reasonable chance to seek, the advice of independent legal counsel on the transaction; and (iii) the client gives informed consent in a signed writing. It is not required that the client actually seek advice from independent counsel. (Note that the rules regarding business transactions with clients do not apply to standard commercial transactions for products or services that the client markets to others.)

Recommended Activity: Read CA Professional Responsibility IV.E.1.c. Specific Kinds of Conflicts

Question 22

Under the California Rules, when a concurrent conflict of interest arises out of the lawyer’s personal interests or prior relationships, ____________________ is required.

A. Informed, written consent from the client.
B. Written disclosure to the client.
C. Oral consent from the client.
D. Oral disclosure to the client.

Answer 22

B. Written disclosure to the client.

Generally, the California Rules require informed, written consent from the client for most conflicts. However, only “written disclosure” to a client is required where the conflict arises out of the lawyer’s prior relationships or personal interests. Thus, B. is the correct answer.

Recommended Activity: Read CA Professional Responsibility IV.E.1. Concurrent Conflicts of Interest

Question 23

Under the ABA Rules, a concurrent conflict of interest exists when: (i) the representation of a client will be directly adverse to the interests of another client; or (ii) there is a ____________________ that the representation of a client will be ____________________ by the lawyer’s personal interests or by his responsibilities to another client, former client, or third person.

A. Significant risk; materially limited.
B. Foreseeable chance; materially limited.
C. Significant risk; reasonably limited.
D. Foreseeable chance; reasonably limited.

Answer 23

A. Significant risk; materially limited.

Under RPC 1.7, a concurrent conflict of interest exists when: (i) the representation of a client will be directly adverse to the interests of another client; or (ii) there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by his responsibilities to another client, former client, or third person.

Recommended Activity: Read CA Professional Responsibility IV.E.1. Concurrent Conflicts of Interest

Question 24

The ABA Rules (and California law) impose several general prohibitions on a lawyer’s conduct, the violation of which may lead to disciplinary measures. Under these prohibitions, a lawyer who commits a ___________________ act is NOT necessarily subject to discipline.

A. Fraudulent.
B. Criminal.
C. Deceitful.
D. Dishonest.

Answer 24

B. Criminal.

A lawyer may not engage in any conduct involving dishonesty, fraud, deceit, or misrepresentation. Thus, A., C., and D. are wrong because these acts on their own are enough to subject a lawyer to discipline. However, a lawyer is subject to discipline for a criminal act only where the act reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Some criminal violations (e.g., certain traffic violations) are considered unrelated to a lawyer’s fitness to practice.

Recommended Activity: Read CA Professional Responsibility I.C.1. General Substantive Standards

Question 25

A lawyer generally may solicit professional employment by:

A. Initiating personal contact with a potential client and offering to represent her at no charge.
B. Telephoning a potential client and pitching his legal skills.
C. Visiting the scene of the accident and giving his business card to the injured person’s relative.
D. Instructing his paralegal to call persons listed on a daily jail booking report and offer the lawyer’s services.

Answer 25

A. Initiating personal contact with a potential client and offering to represent her at no charge.

Under the ABA Rules, a lawyer must not, by in-person, live telephone, or real-time electronic contact, solicit professional employment when a significant motive is the lawyer’s pecuniary gain—thus, offers of free legal service, made without hope of pecuniary gain, are generally permitted. (The California Rule is similar, but prohibits all types of telephone contact and does not specifically prohibit electronic contact. Note also that California prohibits all solicitation when the lawyer knows that the potential client is already represented by counsel in the matter.) Here, B. is wrong because it involves telephone contact, and C. is wrong because it involves personal contact. D. is wrong because a lawyer must not use an agent (here, the paralegal) to do that which the lawyer is prohibited from doing.

Recommended Activity: Read CA Professional Responsibility III.C. Solicitation

Question 26

Under the ABA Rules, in which of the following situations may a concurrent conflict of interest be “waivable” (i.e., client consent may cure the conflict)?

A. The lawyer has doubts as to whether the conflict will affect his professional judgment.
B. The lawyer represents co-parties in the same civil lawsuit.
C. The lawyer represents a plaintiff in suing a defendant, and represents the defendant in the same case.
D. The lawyer cannot explain the details of the conflict to the client because of his duty of confidentiality to another client.

Answer 26

B. The lawyer represents co-parties in the same civil lawsuit.

Despite a concurrent conflict of interest, a lawyer may undertake a representation under the ABA Rules if all of the following conditions are satisfied: (i) the lawyer reasonably believes that he can competently and diligently represent each affected client, despite the concurrent conflict; (ii) the representation is not prohibited by law; (iii) the representation does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case pending before a court or other tribunal; and (iv) each affected client gives informed consent, confirmed in writing. Here, condition (i) directly corresponds to wrong answer A. Condition (iii) corresponds to C., which is also wrong. D. is wrong because under condition (iv), the client’s consent must be “informed”—if the lawyer cannot adequately explain the conflict to the client, then the client’s consent is not effective. B. is the correct answer because conflicts involving joint or multiple representation are waivable if the conditions listed above are met.

Recommended Activity: Read CA Professional Responsibility IV.E.1. Concurrent Conflicts of Interest

Question 27

If a third person intends to pay for a client’s legal fees, specific conditions must be met for the lawyer to accept compensation from the third person. Which of the following is one of those conditions?

A. The client must be made aware that information relating to the representation may be shared with the third person.
B. The third person must give informed consent to the arrangement.
C. The lawyer must keep the third person informed of developments in the case.
D. The third person must not interfere with the lawyer’s professional judgment.

Answer 27

D. The third person must not interfere with the lawyer’s professional judgment.

Under the ABA Rules and in California, a lawyer must not accept compensation for representing a client from someone other than the client unless: (i) the client gives informed consent, (ii) there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship, and (iii) information relating to the representation of the client is protected as required by RPC 1.6 (relating to confidentiality of information). California further requires that the client’s consent be in writing. Note that consent is required only from the client, not the third person. Also, the lawyer has a duty to keep the client’s information confidential; thus, the lawyer is not required (and may not be allowed) to communicate developments to the third person.

Recommended Activity: Read CA Professional Responsibility IV.E.1.c. Specific Kinds of Conflicts

Question 28

Which of the following accurately describes one of the requirements that must be met before a lawyer may settle an existing malpractice claim with a former client?

A. The former client must sign a writing indicating that she has sought the advice of independent counsel in the settlement agreement.
B. The lawyer must advise the former client in writing that independent representation is desirable.
C. The settlement must be approved by the court.
D. The lawyer must be represented by independent counsel in the settlement agreement.

Answer 28

B. The lawyer must advise the former client in writing that independent representation is desirable.

A lawyer must not settle a claim or potential claim for malpractice liability with an unrepresented client or former client unless the client or former client is advised in writing that independent counsel is desirable and is given a reasonable opportunity to seek the advice of independent counsel. (In contrast, when a lawyer makes an agreement prospectively limiting his malpractice liability or requiring arbitration of such claims, the client must actually be represented by independent counsel in the agreement.) A., C., and D. are wrong because such requirements do not exist.

Recommended Activity: Read CA Professional Responsibility IV.E.1.c. Specific Kinds of Conflicts

Question 29

During trial, it becomes apparent that a lawyer representing one of the parties is likely to be called as a necessary witness. The lawyer will be allowed to proceed with the representation if any of the following facts are true, EXCEPT:

A. His testimony will relate solely to an uncontested issue.
B. He will testify only about the nature and value of the legal services he rendered to the client.
C. His client provides informed consent.
D. His value is so distinctive to the case that withdrawal would cause substantial hardship to the client.

Answer 29

C. His client provides informed consent.

A lawyer ordinarily may not represent a client in litigation where the lawyer is likely to be a necessary witness. Note that this conflict is not waivable, i.e., the lawyer will not be allowed to continue the representation based on the client’s informed consent. Thus, if an attorney representing a client at trial is likely to be a necessary witness, the attorney should refuse employment or, if he has already been retained, should withdraw from the case. There are three recognized exceptions to this prohibition: (i) where the testimony will relate solely to an uncontested issue; (ii) where the testimony will concern only the nature and value of legal services rendered to the client; and (iii) where withdrawal of the lawyer would cause substantial hardship to the client because of the distinctive value of the lawyer or firm to the case.

Recommended Activity: Read CA Professional Responsibility IV.E.5. Trial Counsel as Witness

Question 30

A lawyer is retained to represent an organization. Which of the following statements is true?

A. The lawyer is strictly prohibited from representing an employee of the organization.
B. The lawyer automatically represents the organization’s board of directors.
C. The lawyer must act in the best interests of the organization, even if such interests conflict with the interests of the organization’s officers.
D. The lawyer must report a violation of law within the organization if he has already brought it to the attention of the organization’s highest authority and the highest authority failed to act.

Answer 30

C. The lawyer must act in the best interests of the organization, even if such interests conflict with the interests of the organization’s officers.

A lawyer must always act in the organization’s best interests, even if such interests conflict with those of the organization’s constituents. A. is wrong because a lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of RPC 1.7 (relating to conflicts of interest). However, B. is wrong because the lawyer does not automatically represent any of the organization’s constituents. D. is wrong because a lawyer is permitted to report information outside the organization in limited circumstances, but is not obligated to do so.

Recommended Activity: Read CA Professional Responsibility IV.E.6. Conflicts in Representing an Organization

Question 31

Under the ABA Rules, a conflict arising out of a lawyer’s ____________________ an opposing party is likely to be imputed to other attorneys at a lawyer’s law firm.

A. Friendship with.
B. Prior representation of.
C. Family relationship with.
D. Sexual relationship with.

Answer 31

B. Prior representation of.

The California Rules are silent on imputed conflicts of interest. However, under the ABA Rules, if a lawyer faces a conflict of interest (e.g., because of a prior representation of an opposing party) and is disqualified from representing a client, the general rule is that no lawyer in that lawyer’s firm may represent the client (although the imputation may be removed by following the required screening and notice procedures). However, a conflict of interest that is based on a personal interest of the disqualified lawyer (such as a friendship, sexual relationship, or family relationship) generally is not imputed to the firm’s remaining lawyers.

Recommended Activity: Read CA Professional Responsibility IV.E.2. General Rule of Imputed Conflicts

Question 32

Under the ABA Rules, a contingent fee arrangement would likely be allowed in which of the following situations?

A. Representing a husband in seeking an alimony award from his wife.
B. Representing a wife in a divorce proceeding.
C. Representing a plaintiff in a civil tort lawsuit arising out of a sexual assault.
D. Representing the accused in a battery prosecution.

Answer 32

C. Representing a plaintiff in a civil tort lawsuit arising out of a sexual assault.

Under the ABA Rules, contingent fees are prohibited in (i) domestic relations matters in which the payment or amount of the fee is contingent upon the securing of a divorce or upon the amount of alimony, support, or property settlement collected; and (ii) criminal cases. (The California Rules are silent on contingent fees in domestic relations and criminal cases.) Subject to these limitations, contingent fees are generally permitted in civil cases.

Recommended Activity: Read CA Professional Responsibility IV.F.4. Contingent Fees

Question 33

Which of the following statements regarding the ethical duty of confidentiality is true?

A. It prevents all forms of disclosure by the lawyer.
B. It only prevents in-court testimony by the lawyer.
C. It allows a client to refuse to testify about certain information relating to the representation.
D. It only protects disclosure of lawyer-client communications.

Answer 33

A. It prevents all forms of disclosure by the lawyer.

It is important to be able to distinguish the attorney-client privilege from the ethical duty of confidentiality. The attorney-client privilege allows a client to refuse to testify and prevent his attorney from testifying in court about communications between the two. It applies to confidential communications made by an individual to an attorney who is sought out for the purpose of obtaining legal advice. An attorney’s ethical duty of confidentiality is much broader, and prevents the lawyer (not the client) from disclosing the client’s information. The duty applies to all information relating to the representation (not just communications), and protects the information from being disclosed in any manner (not just via in-court testimony).

Recommended Activity: Read CA Professional Responsibility V.B. The Duty to Preserve Confidentiality of Information

Question 34

Which of the following is NOT specifically recognized as an exception to the duty of confidentiality in California?

A. Disclosure to prevent a criminal act that will cause substantial bodily injury to someone.
B. Disclosure to collect an attorney’s fee.
C. Disclosure to obtain legal ethics advice.
D. Disclosure that is compelled by law or court order.

Answer 34

C. Disclosure to obtain legal ethics advice.

The exception for disclosure to obtain legal ethics advice is recognized under the ABA Rules, but is not specifically recognized in California. California recognizes the other listed exceptions.

Recommended Activity: Read CA Professional Responsibility V.B.2. Duty of Confidentiality

Question 35

The client must ultimately make all of the following decisions, EXCEPT:

A. What plea to enter.
B. Whether to waive a jury trial.
C. What material to disclose in discovery proceedings.
D. Whether to settle a matter.

Answer 35

C. What material to disclose in discovery proceedings.

A lawyer must abide by a client’s decisions concerning the objectives of the representation and must consult with the client as to the means by which the objectives are to be pursued. As part of this duty, a lawyer must abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer must abide by the client’s decision, after consultation with the lawyer, as to what plea to enter, whether to waive a jury trial, and whether the client will testify. Thus, A., B., and D. are wrong. Because the lawyer may be obligated to disclose certain evidence (e.g., to comply with discovery rules) regardless of the client’s opinion, C. is correct.

Recommended Activity: Read CA Professional Responsibility VI. The Duties and Bounds of a Lawyer’s Representation

Question 36

Under certain circumstances, a lawyer may counsel a client:

A. To commit a criminal act.
B. To disobey a statute.
C. To commit a fraudulent act.
D. On how to commit an illegal act and get away with it.

Answer 36

B. To disobey a statute.

A lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent. Furthermore, the lawyer must not recommend illegal conduct or instruct the client on how to break the law and get away with it. However, a lawyer may discuss with his client the legal consequences of proposed courses of conduct. A lawyer may also counsel or assist the client in a good faith effort to determine the validity, scope, meaning, or application of the law. Determining the validity of a statute may require that a client disobey the statute.

Recommended Activity: Read CA Professional Responsibility VI.B. Scope of Representation

Question 37

A lawyer who represents a client in a matter speaks with a person who is represented by counsel in relation to that same matter. The lawyer will be subject to discipline EVEN IF:

A. The person is not an actual party to the matter.
B. The person’s lawyer has permitted the lawyer to speak with the person.
C. The lawyer has no reason to believe that the person is represented by counsel.
D. The communication is unrelated to the matter.

Answer 37

A. The person is not an actual party to the matter.

In the representation of a client, a lawyer generally must not communicate about the subject of the representation with a person he knows to be represented by counsel in the matter unless the other counsel has granted permission or he is otherwise authorized by law or court order to make such direct communication. This prohibition on communications with a represented person applies only to matters relating to the representation, and only if the lawyer knows that the person is represented in the matter to be discussed (or if knowledge can be inferred from the circumstances). Note that this prohibition applies to any person represented by counsel concerning the matter to which the communication relates, even if the person is not formally a party to the matter.

Recommended Activity: Read CA Professional Responsibility VI.C. Transactions with Third Persons

Question 38

A lawyer represents a client in litigation against a corporation and wants to talk with some of the corporation’s employees. Which of the following statements is correct regarding which employees the attorney may contact?

A. The lawyer may speak with any employee of the corporation as long as the employee consents to the communication.
B. The lawyer is prohibited from speaking with any employee of the corporation without the consent of the corporation’s counsel.
C. The lawyer is strictly prohibited from speaking with any employee of the corporation.
D. The lawyer must obtain the consent of the corporation’s counsel before talking to certain employees, including those who have authority to obligate the corporation with respect to the matter.

Answer 38

D. The lawyer must obtain the consent of the corporation’s counsel before talking to certain employees, including those who have authority to obligate the corporation with respect to the matter.

A lawyer must get the consent of the organization’s counsel before communicating with a constituent of the organization: (i) who supervises or regularly consults with the organization’s lawyer about the matter, (ii) who has authority to obligate the organization with respect to the matter, or (iii) whose conduct in the matter may be imputed to the organization. A. is wrong because a lawyer must obtain the consent of the organization’s counsel if the employee falls within one of these categories. B. and C. are wrong because they are too broad; only communications with specific persons are prohibited, and the lawyer may proceed with the communication if the organization’s counsel consents.

Recommended Activity: Read CA Professional Responsibility VI.C. Transactions with Third Persons

Question 39

Under her duty of candor to the tribunal, a lawyer MUST:

A. Withdraw if her client intends to commit perjury.
B. Disclose controlling legal authority, unless it is damaging to her client.
C. Refuse to offer evidence she reasonably believes is false.
D. Correct any false statement of material fact that she previously made to the court.

Answer 39

D. Correct any false statement of material fact that she previously made to the court.

Generally, a lawyer must not: (i) make a false statement of fact or law to a tribunal, (ii) fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, (iii) fail to 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 not disclosed by opposing counsel, or (iv) offer false evidence. B. is wrong because all controlling adverse legal authority must be disclosed. C. is wrong because, while a lawyer may refuse to offer evidence that she reasonably believes is false (but does not know is false), she is not required to do so. (A lawyer must refuse to offer evidence that she knows is false.) In the case of potential perjury, the lawyer must first try to persuade the client to testify truthfully. If the client is not a criminal defendant, the lawyer must refuse to offer the evidence if the client insists on testifying falsely. A. is wrong because the lawyer is not forced to withdraw unless the lawyer-client relationship is so strained that the lawyer cannot represent the client effectively. If the client is a criminal defendant and insists on testifying falsely, the lawyer may seek to withdraw or take other remedial measures.

Recommended Activity: Read CA Professional Responsibility VI.E. Candor Toward the Tribunal

Question 40

A lawyer represents a criminal defendant who insists on testifying falsely, despite the lawyer’s attempts to convince him otherwise. In California, what action should the lawyer take?

A. Disclose the intended perjury to the judge.
B. Disclose the intended perjury to the prosecutor.
C. Allow the defendant to testify in a narrative fashion.
D. Refuse to allow the defendant to testify.

Answer 40

C. Allow the defendant to testify in a narrative fashion.

In California, the criminal defense lawyer must first try to convince the defendant not to testify falsely. If that fails, the lawyer may (not must) ask the court for permission to withdraw. If that fails, the lawyer may call the defendant as a witness and may question him in the ordinary manner up to the point at which the lawyer knows the defendant will testify falsely. From that point on, the defense lawyer may allow the defendant to testify in narrative fashion (i.e., to tell his story without questions posed by the defense lawyer). A California lawyer in this situation should not disclose the perjury or refuse to allow the defendant to testify.

Recommended Activity: Read CA Professional Responsibility VI.E. Candor Toward the Tribunal