Transactions with Persons Other Than Clients

Question 1

An attorney ____ not ______ make false statement of material fact or law to third person.

Answer 1

Must

Knowingly

Question 2

True or False: Must a lawyer disclose material fact necessary to avoid helping client commit a crime or fraud.

Answer 2

True

Question 3

What do you do if you can’t talk to a third party to prevent your client from committing a crime because of the confidentiality rules?

Answer 3

Withdrawl

Question 4

What is required before you can talk to someone who is represented by counsel in a matter?

Answer 4

You must get their lawyers consent to talk to them. You must talk to their lawyer even if they are the one that initiate the conversation.

Question 5

Can parties communicate directly with one another or must be via the attorneys?

Answer 5

Parties can communicate with one another.

Question 6

Can a lawyer encourage their client to reach out to the opposing party in a matter?

Answer 6

Yes

Question 7

What happens if you don’t know a party is represented?

Answer 7

You can talk to them about the matter until you find out that they are represented and must immediately stop.

Question 8

Can you talk to a represented party about a matter that has nothing to do with your case?

Answer 8

Yes

Question 9

Can you be authorized by law to talk to a party that is represented by a lawyer?

Answer 9

Yes

Question 10

If your opposing party is an organization, do you need permission to talk to every employee in the org?

Answer 10

No

Question 11

If your opposing party is an organization, do you need permission to talk to a former employee?

Answer 11

No

Question 12

If your opposing party is an organization, what parties do you need permission from the organization’s counsel before you can talk to them?

Answer 12

1) Anyone with authority to obligate the organization
2) Anyone whose conduct can be imputed to the organization (such as the person who caused the case or issue)
3) Anyone who supervises or consults with the organization’s lawyer

Question 13

Do you need an organization’s consent to talk to a random witness?

Answer 13

No - but if the witness is represented, must get consent from their attorney.

Question 14

Can you communicate with unrepresented people?

Answer 14

Yes but you cannot act disinterested / can’t take advantage of them.

Question 15

True or False: You can give advise to an unrepresented person?

Answer 15

True unless the it is reasonably possible that such party’s interest will conflict with the client’s interest.

Question 16

If an unrepresented party has an interest that conflicts with your client, what can you tell them?

Answer 16

Get a lawyer.

Question 17

If you dont know if someone is represented, how are they classified?

Answer 17

Unrepresented until you find out.

Question 18

True or False: You cannot do something which has no substantial purpose other than to embarrass, delay, or burden someone.

Answer 18

True it must have a valid purpose related to the matter.

Question 19

What happens if you received a document or communication that you should not have received?

Answer 19

You must promptly notify the sender so they can take protective action.

Question 20

Does a lawyer have a duty to inform a third party about relevant facts?

Answer 20

No but the lawyer must not misrepresent facts.

Question 21

What is misrepresentation?

Answer 21

Lawyer makes a statement they know is false.

Lawyer affirms a statement they know is false.

Lawyer fails to act or speak when they know something is misleading.

Lawyer states something that is partly true and partly misleading.

Question 22

If your client dies mid case, what is required.

Answer 22

Cannot pursue the matter without notifying the defense lawyer of their death.

Question 23

What is regarded as mere puffery?

Answer 23

Estimates of price or value

Statement as to intention for the settlement of a claim.

Question 24

Can a lawyer who has authority to settle a case tell opposing client they doubt their client would be interested in settling?

Answer 24

Yes - this is generally mere puffery.

Question 25

If a lawyer withdraws to prevent assistance to a client in a fraud, what MAY they do?

Answer 25

Notify the third party of the withdrawal

May disaffirm documents provided.

Question 26

Can you negotiate a document with an unrepresented person?

Answer 26

Yes but must make it clear you don’t represent them.

Question 27

True or FALSE: ABA does not address whether when you accidently receive a document you must return it or destroy it.

Answer 27

True - this is determined on a state by state basis.

Question 28

True or FALSE: ABA does not address whether when a document is accidently sent to the wrong party the privilege is waived.

Answer 28

True - this is determined on a state by state basis.

Question 29

Theo is representing Jessica in the sale of her condo. During negotiations, prospective buyer Penny admires the view of the lake from the window and explains that it is the main reason she is interested in the condo. Theo knows that construction of a large building is going to start next month and will almost completely block the view of the lake. He says, “Yep, it’s a once in a lifetime view.”

Is Theo subject to discipline?

Answer 29

Yes - Mis rep

Question 30

Stella is defending Rafael in a personal injury lawsuit filed by Dale. Stella reasonably believes that Dale’s attorney failed to convey Rafael’s latest settlement offer to Dale. Stella calls Dale to communicate the offer and tells him to talk it over with his attorney.

Is Stella subject to discipline?

Answer 30

Yes - cannot talk to dale directly because he is represented.

Question 31

If a lawyer has some exceptional reason to contact a represented person, what can they do?

Answer 31

Get a court order.

Question 32

Aaron is representing Molly in a personal injury case. Juan, one of Molly’s co-plaintiffs, calls Aaron and says, “Can you tell me what’s going on with the case? My attorney won’t respond to my emails.” Aaron gives Juan a quick and accurate update on the case.

Is Aaron subject to discipline?

Answer 32

Yes - A lawyer who represents a client in a matter can’t communicate about a matter with a person the lawyer knows is represented by counsel, unless that person’s counsel consents, or unless the law or a court order authorizes the communication. This is true even if the represented person initiates or consents to the communication.

Question 33

True or False: The rule against contacting represented persons doesn’t prohibit represented persons from communicating directly with each other, and a lawyer may advise their client regarding such communications

Answer 33

True

Question 34

Caroline receives a phone call from Lacey, a prospective client who wants to talk about a pending case. Lacey tells Caroline that she is already represented by an attorney in the case, but she is thinking of firing him. Caroline and Lacey have a brief consultation.

Is Caroline subject to discipline?

Answer 34

No because the rule only applies where the communicating lawyer represents a client in that matter. Here caroline has no involvement in Lacey’s case.

Question 35

True or False: The rule against communicating with persons who are already represented by an attorney in a matter only applies where the communication is related to the matter.

Answer 35

True - they can talk sports/election/weather or other items not related to the case.

Question 36

True or False; The rule prohibiting contact with a represented person only applies where the communicating lawyer knows that the person is represented by counsel.

Answer 36

True - if you didn’t know - you aren’t subject to discipline.

Question 37

Is there a duty to investigate whether a witness is represented?

Answer 37

No

Question 38

when the lawyer knows, or reasonably should know, that the unrepresented person misunderstands the lawyer’s role in the matter, what must the lawyer do?

Answer 38

The lawyer must make reasonable efforts to correct the misunderstanding.

Question 39

Is a lawyer prohibiting from giving advice to an unrepresented party if they don’t think such person will have a conflict with their cilent?

Answer 39

No - they can give advice.

Question 40

When a lawyer knows or should know that his client’s interests are likely to be in conflict with those of an unrepresented person, the lawyer must …

Answer 40

not give legal advice to that person (other than to get a lawyer).

Question 41

Benji is representing Genevieve in the sale of her car to Hank, who does not have an attorney. Hank and Genevieve discuss the terms amongst themselves, and Benji then prepares the contract and mails a copy to Hank for his review and signature. Hank calls Benji and asks, “If I sign this contract, is it actually binding? Is there a way to get out of it if I don’t like the car?” Benji explains to Hank that he is Genevieve’s lawyer in the matter and is acting in her interests only. He then truthfully tells Hank that it would be very difficult to get out of the finalized contract.

Is Benji subject to discipline?

Answer 41

Yes - cannot give him advice just tell him to get a lawyer.

Question 42

Is it a problem if you didn’t claim to be disinterested, but you gave legal advice to someone whose interests conflicted with your clients?

Answer 42

Yes - violation of the rules - must only tell them to get a lawyer.