2025 MPRE Practice Questions PDF

525 MPRE PRACTICE QUESTIONS FOR 2025 PROFESSIONAL RESPONSIBILITY COURSE SUPPLEMENT (Revised & Updated) Dru Stevenson 1 © 2021 Drury D. Stevenson Cover photo: Stone frieze of law professor lecturing while his students sleep, from the main entrance of the Yale Law School. Photo © Rena Tobey, used by permission. 2 Note for law students: These 525 sample questions have the same format and style as the questions on the current Multistate Professional Responsibility Exam (MPRE). The multiple-choice format also provides a useful way to test students’ knowledge of each provision or clause in each of the Model Rules, as well as the drafters’ official Comments (which the MPRE tests along with the Model Rules themselves). No other MPRE practice book currently on the market has as many sample questions, or as broad coverage, as this book. The practice questions are also extremely useful in mastering the material covered in every Professional Responsibility/Legal Ethics course, which is a required course at every American law school. There are companion lecture videos on my YouTube channel about the Model Rules – https://www.youtube.com/@professorstevenson. The arrangement of topics in this book follows the order of how heavily the MPRE tests each Rule. The bar examiners publish useful information on their website, http://www.ncbex.org/exams/mpre, including a list of all topics tested, and how heavily the exam tests each separate topic. This book follows that order, but most Professional Responsibility courses do not, but these practice questions will still give students proficiency in the material covered throughout the course, in preparation for their final exam. This compendium of questions is a supplement to the author’s other book, The Glannon Guide to Professional Responsibility. My Glannon Guide provides detailed explanations for each of its questions, as well as a helpful introduction to each topic. This book provides only an answer key and a few citations to Model Rule subsections, the Restatement (Third) of the Law Governing Lawyers, ethics opinions, and court cases, but it has more questions. For best results, use the two books together. “Rule” in the hints after the questions refers to the applicable provision of the ABA Model Rules of Professional Conduct, the primary basis for the MPRE. The ABA Model Rules are available free on the ABA website. “Restatement” in this book refers to the American Law Institute’s RESTATEMENT OF THE LAW (THIRD) - THE LAW GOVERNING LAWYERS. 3 Table of Contents PART I – HEAVILY TESTED SUBJECTS... 5 PART II – OTHER SUBJECTS ON THE MPRE... 125 ANSWER KEY... 233 4 PART I: HEAVILY TESTED SUBJECTS on the MPRE [NOTE: In the author’s law school courses on Professional Responsibility, PART I is material covered in the first half of the semester. If the class has a midterm exam, only the material in Part I is on the midterm.] 5 Rule 1.7: Conflict of Interest – Current Clients 1. An attorney serves as the lawyer for a corporation and is a member of its board of directors. Which of the following is true regarding this situation? a) The attorney is subject to discipline, because the responsibilities of the two roles may conflict, as when Attorney must advise the corporation in matters involving actions of the directors, and there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment b) The attorney must limit his legal representation of the corporation to transactional and regulatory matters, and cannot represent the corporation in litigation against adverse parties, as there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment c) The attorney must have the final word on decisions of the board when he is present as a director, because Attorney bears responsibility for the decisions in the form of potential legal malpractice liability, which does not apply to the other directors who are not lawyers. d) The attorney must advise the other board members that in some circumstances, matters they discuss at board meetings while the attorney is there as a fellow director would not be protected by the attorney-client privilege in later litigation; and that conflict of interest considerations might require the attorney’s recusal as a director, or might require the attorney to decline representation of the corporation in a matter. Rule 1.7 Cmt 35 2. A municipal election for a seat on the city council was remarkably close one year, resulting in a run-off election that was ever closer. Both candidates claimed victory, and each accused the opposing candidate of voter fraud and violations of various election rules. There is potential for litigation if the two cannot agree as to a winner in the election, with one or the other conceding. A certain attorney is a prominent lawyer in the community and has previously represented each candidate in various legal matters. Both candidates would like to hire the attorney to represent them in negotiating a resolution to the election. Each candidate fully understands their adverse interests and the potential conflicts of interest for the attorney, but each is willing to provide written informed consent to have the attorney represent them both in facilitating the negotiations. May the attorney represent both candidates in this negotiation? a) Yes, common representation is permissible where the clients’ interests align overall, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis. b) Yes, because conflicts of interest rules do not apply outside the litigation arena; the parties here are not litigating, and no litigation is pending, but instead are merely hiring the attorney to facilitate negotiations of an issue where the two sides are not far apart. c) No, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, even in a negotiation. d) No, because the fact that the attorney has represented each of the parties in the past means that he would possess confidential information that would make mutual representation nonconsentable in this case. Rule 1.7 Cmt 28 3. Two sisters are co-tenants of a house that they inherited from their father. They want to sell the house and hire an attorney to handle the real estate transaction. This attorney explains the potential for conflicts of interest in detail, and each sister readily agrees to provide written informed consent in the form of a waiver of future conflicts of interest. After a prolonged period, they finally find a buyer who is interested in the house, but the buyer wants to impose several 6 onerous conditions on the purchase and engages in unreasonably protracted negotiations over the purchase price. The sisters themselves cannot agree on whether to accept any of the buyer’s proposals, further dooming the negotiations. Eventually, one sister becomes frustrated with the attorney over the prolonged, hitherto unsuccessful negotiations, and fires the attorney. The other sister wants the attorney to continue the representation. Regarding the sister who seeks to discharge the attorney, may she do so? a) Yes, but only if discharging the lawyer will not be prejudicial to the interests of the buyer, who has already invested a lot of time and energy in the negotiations to purchase the property. b) Yes, each client in the common representation has the right to discharge the lawyer as stated in Rules of Professional Conduct and the accompanying Comments. c) No, because she signed a waiver of future conflicts of interest, which is binding and safeguards the attorney against premature discharge. d) No, because by agreeing to common representation with her sister, she implicitly agreed that discharging the attorney would require assent of both sisters, as they are both clients. Rule 1.7 Cmt 33 4. Three co-owners of a successful startup business hire a certain attorney to help with working out the financial reorganization of their enterprise. The attorney seeks to resolve potentially adverse interests by developing the parties' mutual interests. In assenting to represent all the parties as clients simultaneously, the attorney agrees to adjust the relationship between clients on an amicable and mutually advantageous basis. The clients each provide written consent to the potential conflicts of interest. Is it proper for the attorney to represent three clients with potentially adverse interests in a negotiated transaction? a) Yes, common representation is permissible where the clients’ interests mostly align, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis. b) Yes, because conflicts of interest rules do not apply outside the litigation arena, and the parties here are not litigating and do not expect to litigate, but instead are merely hiring the attorney to facilitate negotiations of an issue where the two sides are not far apart. c) No, because the parties’ interests are directly adverse, and a lawyer may not seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis. d) No, because conflicts of interest in a negotiation situation are nonconsentable, as no reasonable lawyer would believe that the conflict of interest would not materially limit his ability to represent both sides; this is especially true of collective bargaining in the employment context. Rule 1.7 Cmt 28 5. An experienced attorney practiced at a small firm in a rural area. The attorney regularly represented the county school district in employment discrimination matters. One day, a group of citizens asked the attorney to represent them before the county planning commission to oppose the widening of a county road. The school district had separate budgetary funding, and it had an elected governing Board with its own authority to hire legal counsel. In contrast, the members of the county planning commission were appointees by the County Executive, and lawyers at the County Solicitor’s office handled the legal work for the commission, though the commission and the County Solicitor’s office received their funding from separate line items in the county budget. Would it be proper, under these facts, for the attorney to agree to represent the citizens against the 7 Commission, without informing them of her existing relationship with the School District, and without also securing the Board's consent? a) The attorney must obtain informed consent, confirmed in writing, from the school district and the citizen group regarding the conflict of interest. b) The attorney cannot represent the citizens group against the county, because that would constitute a nonconsentable conflict of interest. c) The attorney would have no obligation under the ethical rules to inform the citizens group about her representation of the school district, or the school district about her representation of the citizens group against the county planning commission in the road-widening dispute. d) The attorney cannot provide representation to the citizen group against the county planning commission in the road-widening dispute, but another lawyer in the attorney’s firm could represent them. ABA Formal Op. 97-405 6. Conglomerate Corporation owns a little more than half the stock of Giant Company. Conglomerate’s stock, in turn, is public, available on the public stock exchange, as is the remainder of the stock in Giant Company. The president of Conglomerate Corporation has asked Attorney Stevenson to represent Giant Company in a deal by which Giant would make a proposed transfer of certain real property to Conglomerate Corporation. The property in question is unusual because it contains an underground particle collider used for scientific research, but also valuable farmland on the surface, as well as some valuable mineral rights in another part of the parcel. These factors make the property value difficult to assess by reference to the general real-estate market, which means it is difficult for anyone to determine the fairness of the transfer price in the proposed deal. Would it be proper for Attorney Stevenson to facilitate this property transfer at the behest of the president of Conglomerate, if Attorney Stevenson would be representing Giant as the client in this specific matter? a) Yes, because Conglomerate Corporation owns more than half of Giant Company, so the two corporate entities are one client for purposes of the rules regarding conflicts of interest. b) Yes, because the virtual impossibility of obtaining an appraisal of the fair market value of the property means that the lawyer does not have actual knowledge that the deal is unfair to either party. c) No, because the attorney would be unable to inform either client fully about whether the proposed transfer price would be in their best interest. d) No, not unless the attorney first obtains effective informed consent of the management of Giant Company, as well as that of Conglomerate, because the ownership of Conglomerate and Giant is not identical, and their interests materially differ in the proposed transaction. RESTATEMENT § 131 7. Mr. Burns, the chief executive officer of Conglomerate Corporation, now faces criminal charges of discussing prices with the president of a competing firm. If found guilty, both Mr. Burns and Conglomerate Corporation will be subject to civil and criminal penalties under state and federal antitrust laws. An attorney has been representing Conglomerate Corporation. She has conducted a thorough investigation of the matter, and she has personally concluded that no such pricing discussions occurred. Both Conglomerate Corporation and Mr. Burns plan to defend on that ground. Mr. Burns has asked the attorney to represent him, as well as Conglomerate Corporation, in the proceedings. The legal and factual defenses of Conglomerate Corporation and Mr. Burns seem completely consistent at the outset of the matter. Would the attorney need to 8 obtain informed consent to a conflict of interest from both Mr. Burns and a separate corporate officer at Conglomerate Corporation before proceeding with this dual representation? a) Yes, the likelihood of conflicting positions in such matters as plea bargaining requires the attorney to obtain the informed consent of both clients before proceeding with the representation. b) Yes, because it will always be in the best interest of a corporation to blame the individual who acted in the situation, to avoid liability under a theory of respondeat superior. c) No, because their legal and factual assertions appear identical in this case, so the risk of contradiction or adverse positions in the litigation is de minimis. d) No, because no one else at Conglomerate Corporation would be able to provide effective consent to the potential conflict of interest on behalf of the organization, if the chief executive officer has required the dual representation to occur. RESTATEMENT § 131 8. An attorney meets with a potential client regarding representation in defense of a nuisance suit. Upon review of the original petition, the attorney realizes that she knows plaintiff’s lawyer. The attorney and plaintiff’s lawyer worked together as associates at the same law firm directly out of law school twenty years ago but have not practiced law together since the attorney started her own firm eleven years ago. The two lawyers do not regularly socialize together or otherwise encounter one another aside from occasionally crossing paths at the courthouse. From time to time, when they coincidentally come across one another at the courthouse, they have lunch together at a nearby café. The attorney discloses the nature of her relationship with the plaintiff’s lawyer. The potential client states that she still wants to retain the attorney, but the client does not provide written informed consent. Will the attorney be subject to discipline if she does not decline representation in this case? a) Yes, because the attorney’s relationship with opposing counsel is sufficiently close in nature that the potential client is not representable by the attorney regardless of disclosure or consent. b) Yes, because even though the attorney disclosed the relationship to the client, she failed to obtain a written informed consent from the client. c) No, because the attorney’s relationship with opposing counsel is too remote to pose a risk to representation of the client and the attorney does not need to disclose the relationship with opposing counsel to the client or to obtain the client’s written informed consent. d) No, if the attorney believes she can provide competent, diligent representation of the client, and she discloses the nature of the relationship with opposing counsel to the client, the attorney may represent the client in the matter without obtaining written, informed consent from the client. Rule 1.7; ABA Formal Op. 20-494 9. An attorney agreed to represent a client in a litigation matter and had checked for conflicts of interest regarding the opposing party. Soon after agreeing to take the case, however, the attorney learned that opposing counsel was one of his closest friends. They gave each other gifts for their birthdays and celebrated special occasions together, socialized together regularly, and their children were friends and his children had gone for sleepover parties at the home of opposing counsel. The two families had even vacationed together on two occasions. In fact, opposing counsel was one of the few friends that the attorney felt he could talk to about his personal problems. Even so, the matter seemed straightforward and the positions of the two parties were close enough that a quick settlement seemed likely. Does the attorney have an obligation to 9 inform the client about the nature of his friendship with opposing counsel and obtain written, informed consent from the client? a) Yes, any type of friendship between a lawyer and opposing counsel requires disclosure to the client and informed consent before proceeding with the representation. b) Yes, every affected client should be aware of this type of close friendship and must give consent to proceed with the representation. c) No, the attorney should inform of the client of this type of friendship but does not need to obtain informed consent. d) No, mere friendships between the lawyers on opposing sides of a case do not create the same type of conflict as family relationships or intimate romantic relationships. Rule 1.7; ABA Formal Op. 20-494 10. An attorney sued Giant Company on behalf of a client in a personal injury matter. During the protracted litigation that ensued, Conglomerate bought Giant Company. The attorney was already representing Conglomerate in a regulatory compliance matter before a federal administrative agency. Assuming this development was unforeseeable at the outset of representing the client against Giant Company, will the attorney have the option to withdraw from representing one of the clients to avoid the conflict? a) Yes, because one matter is in state court and the other matter is a completely unrelated federal administrative proceeding. b) Yes, but the attorney must seek court approval where necessary and take steps to minimize harm to the clients, and he must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. c) No, because the federal administrative matter would preempt state tort law under the Supremacy Clause. d) No, if a conflict arises after representation is underway, the lawyer ordinarily must withdraw from the representation of both clients, unless the lawyer has obtained the informed consent of each client at the outset of the representation. Rule 1.7 Cmt 5 11. Big Firm represents hundreds of corporate clients out of a dozen offices in different states. The firm has no formal procedures in place to check for conflicts at the outset of representation for new clients, but the managing partner of the firm has an incredible memory and has never failed to spot a potential conflict of interest in the past. An attorney agrees to represent a new corporate client that owns many subsidiaries, and checks with the managing partner, who assured Attorney there are no potential conflicts. After the new corporate client had disclosed a substantial amount of confidential information, it emerged that some of its subsidiaries were directly adverse to other clients of Big Firm. The attorney was completely unaware of the potential conflicts at the time he agreed to the representation, despite asking the corporate client a few questions about the opposing parties in pending litigation it might have. Will the attorney be subject to discipline for not declining representation in this case? a) Yes, because ignorance caused by a failure to institute reasonable procedures, appropriate for the size and type of firm and practice, will not excuse a lawyer's violation of the Rules regarding conflicts of interest. b) Yes, because there is a presumption that a company owning several subsidiaries will have at least one adverse interest to other clients of a Big Firm. c) No, as he was unaware of the conflict at the time, but now that the conflict is apparent, Attorney must withdraw from representation 10 d) No, because the attorney at least partly relied upon the managing partner’s prowess in identifying conflicts, given that the managing partner had never before made a mistake. Rule 1.7 Cmt 3 12. A husband and wife decide to divorce and reach an agreement to share the same lawyer in hopes of saving money. They hire an attorney to represent each of them in Family Court for the dissolution of marriage. The attorney explains that there is an obvious conflict of interest here, but the husband and wife insist, and sign informed consent forms waiving the conflict and their rights to assert any future claims related to the conflict. The husband and wife have no children, and they have always kept separate bank accounts. Each purchased their own car from the money in their own bank account and each car’s title is in only one name. They live in an apartment whose lease is expiring soon, so there is no real property to divide. Would it be proper for the attorney to represent both in the divorce? a) Yes, because it appears on these facts that there will be no assets in dispute at all, so the theoretical conflict of interest would have no bearing on their case. b) Yes, because both clients consented in writing, the dual representation does not violate law, and the attorney could have a reasonable belief that he will be able to provide competent and diligent representation to each affected client. c) No, because contingent fees are not permissible in divorce cases, and the husband and wife’s sole motivation in sharing a lawyer was to save money. d) No, because the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal Rule 1.7(b)(3) 13. Three individuals plan to form a joint venture and ask an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. They have already agreed that everyone will contribute exactly one-third of the startup funds for the venture, each will own one-third of the shares, each will have equal control over the Board, and each agrees to indemnify the others for a one-third share of any personal liability related to the joint venture. They have also agreed that they will have no non-compete agreements. The joint venture will hire managers, marketers, and other employees to operate the business. The three individuals are co-owners of a patent that could potentially be very lucrative when they bring it to market, and they have known each other and worked together for a long time. The attorney cannot find any current areas of conflict between them, though he knows that it is technically possible that some unforeseen conflict could arise in the future. The shared objectives and goals of the group lead the attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist and that the attorney may still represent everyone at once. May the attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture? a) Yes, if the attorney has a reasonable belief that he will be able to provide competent and diligent representation to each client, because the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. b) Yes, because the mere possibility of subsequent harm does not itself require disclosure and consent. c) No, the situation is likely to limit materially the attorney’s ability to recommend or advocate all potential positions that each might take because of his duty of loyalty to the others; 11 representing the group’s overall interests in effect forecloses alternatives that would otherwise be available to the client. d) No, because the fact that the individuals already decided to create a joint venture, and sought representation together from a single lawyer, constitutes implied consent to the common representation despite any potential conflicts of interest involved. Rule 1.7 Cmt 8 14. A client owns a partnership share of a closely held business, and the other partners vote to impose an involuntary buy-out of the client to remove him from the firm. The client is clearly upset about this, but the partnership agreement clearly permits involuntary buyouts by a majority vote of the other shareholders. Then the client hires an attorney to represent him in the buyout transaction, to review the necessary documents and provide legal counsel about it. No litigation is under consideration yet. The attorney’s sister is also a lawyer in that city, at another firm, and the sister represents the other shareholders in the partnership. Nevertheless, the attorney did not disclose that her sister represented the other partners, as she and her sister are not close and rarely speak, and the matter is unlikely to turn into litigation. Is the attorney, or the other lawyers in her firm, subject to disqualification in this matter? a) No, because the attorney and her sister are not close enough for there to be a substantial risk that they will share confidential information, and the matter seemed unlikely to turn into litigation. b) No, so long as both sisters give informed consent in writing, and each believes that she will be able to provide competent and diligent representation to her client c) Both the attorney and her firm would be subject to disqualification, because the client did not give written informed consent. d) The attorney would be subject to disqualification, but ordinarily the other lawyers in her firm would not be subject to disqualification. 15. An attorney has applied to make a lateral move from her firm to Big Firm, and she has already gone through the first two of three rounds of interviews for the position. Then the attorney agrees to represent a client in filing a breach of contract claim against Construction Company over a commercial development project. Big Firm represents Construction Company, and the firm’s lawyers drafted the contract that forms the basis of the client’s complaint. The client claims that Construction Company breached a certain provision of the contract that is ambiguous; Construction Company is confident that its conduct falls within the contractual language of that provision. Is it proper for the attorney to undertake representation of the client in this case? a) Yes, assuming the client gives informed consent to the representation, despite the conflict of interest here. b) Yes, because there is no clear conflict of interest here, because the attorney has not yet started working at Big Firm and could not have participated at all in drafting the contract provision that is now in dispute. c) No, as during the previous interviews, the attorney was likely to have gleaned some confidential information about Construction Company from Big Firm. d) No, because when a lawyer has discussions concerning potential employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client. Rule 1.7 Cmt 10 12 16. A group of several individuals seeking to form a joint venture asked an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. Two of the individuals were to provide most of the initial funds for the startup; two others were experienced inventors who were to provide new product designs; two others had expertise in business management and were to serve as managers; and two had proven records in high-end sales and marketing. They have not yet resolved the allocation of ownership shares, bonuses for managers, whether to have anti-compete agreements for each participant, whether patents will belong solely to the joint venture or partly to the inventors themselves, and whether sales reps will work on salary or commissions. Everyone says that she wants whatever terms would be best for the joint venture overall, rather than what would be most beneficial for each one individually. The shared objectives and goals of the group lead the attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist, and that the attorney may still represent everyone at once. May the attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture? a) Yes, because the mere possibility of subsequent harm does not itself require disclosure and consent. b) Yes, assuming the attorney has a reasonable belief that he will be able to provide competent and diligent representation to each client, because the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. c) No, the situation is likely to limit materially the attorney’s ability to recommend or advocate all potential positions that each might take because of his duty of loyalty to the others; representing the group’s overall interests in effect forecloses alternatives that would otherwise be available to the client. d) No, because the fact that the individuals already decided to create a joint venture, and sought representation together from a single lawyer, constitutes implied consent to the common representation despite any potential conflicts of interest involved. Rule 1.7 Cmt 8 17. Three individuals hire an attorney to represent them as co-defendants in a tort action. At the outset, the attorney tells them that there could be a potential conflict of interest if he represents all three of them, and that they will need to sign informed consent forms, which they do. The three individuals have common goals and interests in this litigation, so they do not hesitate to sign the forms or inquire further about the implications of the potential conflicts. No further discussion occurs about the issue, and the attorney proceeds with the representation. Could the attorney end up having a duty to withdraw from representation later in the litigation, if the clients gave written consent to the shared representation at the outset? a) Yes, when undertaking representation of multiple clients in a single matter, the information must include the implications of the common representation, including potential effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. b) Yes, if the liability insurers for the three co-defendants disagree on the terms of settlement and were unincluded in the original written consent. c) No, because the attorney dutifully obtained written consent from each client, as required by the Rules of Professional Conduct. 13 d) No, assuming no situations arise where the lawyer obtains confidential information from one client that he could use to harm the interests of another client, and none of the clients file a crossclaim against another co-defendant. Rule 1.7 Cmt 18 18. Husband and Wife wanted to hire a certain attorney to prepare their wills. Before the formalities of representation were final, husband spoke with the attorney privately by phone and disclosed that Husband had been having an affair, and that his lover might be pregnant. Husband forbids the attorney to tell Wife about this. Then the attorney realizes there could be potential conflicts of interest between husband and wife about the wills, distribution of assets, potential challenges to the will by offspring from outside the marriage, and potential claims for child support against Husband’s estate. Would it be proper for the attorney to proceed with representing Husband and Wife in preparing their wills? a) Yes, assuming each provides written consent after receiving warnings about the potential conflicts that often emerge in dual representation b) Yes, because this is a transactional matter, not litigation in which adverse claims could arise. c) No, because the attorney cannot violate the duty of confidentiality to Husband, which would be necessary to obtain informed consent from Wife. d) No, because it would be improper to prepare a will for Husband under such circumstances. 19. Business Manager and Shift Supervisor, who worked at a customer service call-center, became co-defendants in a lawsuit by a disgruntled former employee. The plaintiff claimed to have been the victim of gender discrimination in the form of a hostile work environment, as well as intentional and negligent infliction of emotional distress related to the same factual allegations about her treatment at the workplace. Business Manager hired a certain attorney to represent both himself and the Shift Supervisor, who had been the plaintiff’s direct superior. Based on Business Manager’s initial investigation and review of the personnel files of the plaintiff and the Shift Manager, he believes the allegations are baseless and that the suit will end in a dismissal or summary judgment before trial. Shift Supervisor had a spotless work history, but the plaintiff had numerous interpersonal conflicts with her peers, was frequently late for work or missed work completely, and was the subject of several customer complaints. From his consultations with the defendants, the attorney understood that the complaints targeted the Business Manager and Shift Supervisor equally. Business Manager and Shift Supervisor both gave the attorney written informed consent to the potential conflicts of interest in having the attorney represent both. Business Manager obtained tentative permission to have the business cover the legal fees for the attorney. Near the end of the discovery phase, however, plaintiff produced numerous inappropriate love letters to her from Shift Supervisor, many with explicit sexual overtures, and a few that sounded threatening based on her lack of response to previous letters. In addition, several co-workers of plaintiff gave depositions explaining that they had witnessed Shift Supervisor engaging in inappropriate and unwanted touching of plaintiff on many occasions. Several also testified that Shift Supervisor would often accost her for ten or fifteen minutes outside, before she could reach her workstation, and that this was the cause of her tardiness for work. Business Manager had never heard about any of these problems before. Moreover, during depositions the plaintiff explained that she always had little contact with Business Manager and had no direct complaints about his treatment of her, and she acknowledged that she had never complained to Business Manager about Shift Supervisor’s harassment of her. She disclosed that Business Manager was a co-defendant only because her attorney believed it was necessary to name someone from upper management in the lawsuit to trigger the legal protections of Title VII and other antidiscrimination laws. Business Manager then revoked his consent to the conflict of 14 interest, explaining that he wanted separate representation from Shift Supervisor. Trial was due to begin two weeks later. Would it be proper for the attorney to continue representing either Shift Supervisor or Business Manager, but withdraw from representing the other? a) Yes, the attorney can potentially continue to represent Business Manager but not Shift Supervisor, because Shift Supervisor engaged in misconduct that was unknown to Business Manager, and Business Manager is the one who arranged for the payment of the legal fees. b) Yes, the attorney can potentially continue representing Shift Supervisor but not Business Manager, given the nature of the conflict, the fact that Business Manager revoked consent because of a material change in circumstances, the expectations of Shift Supervisor, and so on. c) No, the attorney must petition the court to withdraw from representing both clients, as he has now obtained confidential information about each of them, and one is unwilling to consent to the continued common representation. d) No, the attorney must continue to represent both clients, because it is the eve of trial and withdrawing would be prejudicial to them, and both consented in writing to the potential conflicts involved with using the same lawyer. Rule 1.7 Cmt 21 20. An attorney has a private practice in a large rural township, and she specializes in commercial real estate transactions, such as the sale and lease of farmland, stables, granaries, and mills. As the only lawyer in the township with expertise in this area, she has represented most of the parties who buy and sell commercial real estate there. As a result, most of her clients pose potential conflicts of interest with other current, former, or future clients, so the attorney has a standard “waiver of future conflicts” form that explains conflicts of interest that typically arise in commercial real estate transactions, and she asks every client to sign it at the commencement of representation. The client is a major landholder in the township, who inherited extensive tracts of farmland from his family, who in previous generations were some of the original settlers in the area. Over the years, the client has sold dozens of small parcels of farmland to neighboring farmers or small businesses such as honey processors, taxidermists, hardware stores, and a veterinarian. The client has also bought properties at times that were adjacent to his existing landholdings. The client has always used other lawyers for these transactions in the past, and in each previous instance, the other party had separate counsel. The client now wants to hire the attorney to sell a parcel to a real estate developer. Buyer (the developer) is also a client of the attorney on unrelated matters, but the Buyer has hired another lawyer to handle this certain matter. The client and Buyer have had a good working relationship in the past and have consummated a few transactions that went smoothly. When the client meets with the attorney to review and sign a retainer for this representation, the attorney includes with the retainer her standard “waiver of future conflicts” form, without additional oral explanation except to mention that she represents Buyer in an unrelated matter. The client reads the form and signs it. As the negotiations for the sale to the developer proceed, a new conflict arises between the client’s interests and the unrelated matters for which the attorney has represented the developer, as one will significantly affect the road traffic for the other. This was an unexpected development, though not unusual – such situations were familiar and routine for the attorney and the parties. Is the attorney’s standardized “waiver of future conflicts,” signed by the client, likely to be effective in this situation? a) Yes, if the client agrees to consent to a specific type of conflict with which the client is already familiar, then the consent ordinarily will be effective regarding that type of conflict. b) Yes, because the conflict of interest was unforeseeable at the time the representation began, and the client was aware that the attorney represented the Buyer. 15 c) No, because it violates the Rules of Professional Conduct for a lawyer to ask a client to waive future claims such as a conflict of interest, unless the client has representation by outside counsel in deciding whether to sign the waiver. d) No, because it violates the Rules of Professional Conduct for a lawyer to use a standard, one- size-fits-all consent form without additional oral explanation. Rule 1.7 Cmt 22 21. An attorney represented a client in a residential real estate transaction. At the same time, the attorney agreed to represent the defendant in a large class-action lawsuit, an alcoholic beverage maker that understated the alcohol content of its products on its labels, leading to numerous cases of inadvertent intoxication, liver damage from continuous consumption, and a few deaths from overconsumption that led to alcohol poisoning. The client was an unnamed member of the plaintiff class in the class-action lawsuit against the alcohol producer. The attorney did not inform the client that he was representing the defendant in the class-action lawsuit or seek consent from the client or from the alcohol producer. Plaintiffs’ counsel in the class action lawsuit discovered this situation, and he asked the court to disqualify the attorney from representing the defendant. Should the attorney be subject to disqualification under such circumstances? a) Yes, because the attorney represents clients whose interests are directly adverse, and he did not seek or obtain written informed consent to the conflict of interest. b) Yes, because the client will obviously feel betrayed when she learns that the attorney is representing the defendant in the class action lawsuit, and the attorney might have confidential information from representing a client in the real estate transaction that would be prejudicial in the class action lawsuit. c) No, because a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter. d) No, because the interests of the client and the alcohol producer are not adverse, as the client merely hired the attorney to handle a residential real estate matter. Rule 1.7 Cmt 25 22. Two separate clients hired the same attorney, signing their retainer agreements one week apart, on unrelated matters, though both involve property owners’ rights under the state’s common law doctrine of public trust for beaches, which guarantees public access to beaches up to the vegetation line on the shore. In one case, erosion has moved the boundary back on the property owner’s lot to the point where his house is now clearly on the public access portion, and he seeks a declaratory judgment that erosion cannot jeopardize the private ownership of a building and its curtilage. Current public trust doctrine in the state would suggest that the property owner has lost all the value in his property, so he needs to seek a change or exception to the current law. The other case involves a property owner whose lots had always been separated from the beach by a small public park, but erosion has eliminated the park and given him water access from his property, which has doubled the value of his land under current public trust doctrine. The state government, however, is seeking a declaratory judgment in his case, arguing for an exception or change to the current law that would rob the owner of the windfall he received due to the erosion. Does this situation present a conflict of interest that would require the attorney to obtain informed consent, in writing, from both clients, before proceeding with the representation? 16 a) No, the mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. b) No, given that both are declaratory judgment actions, it is not possible that one client’s interests could be adverse to the other’s. c) Yes, a conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case, as when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. d) Yes, but this type of conflict involves a question of law, so it is nonconsentable by the two clients. Rule 1.7 Cmt 24 23. An experienced attorney handles claims against banks for many clients, for disputes resulting from the failure of banks to investigate in a timely manner claims of fraud or unauthorized use of bankcards. Most of the attorney’s work consists of sending demand letters, and most cases never actually result in the filing of a suit. Bank, a small local bank, retains the attorney to handle a certain claim against a customer for non-payment of a loan. The attorney has not represented any clients against Bank. Even so, the attorney includes in his contract for services a clause in which Bank waives any conflicts that may arise in the future - conflicts that involve the attorney representing clients against Bank for issues regarding failure to investigate claims of fraud or unauthorized use of bankcards. Is the attorney’s conduct proper? a) Yes, attorneys may include waivers of future conflicts assuming clients are aware of the waiver. b) Yes, attorneys can include waiver clauses for specific future conflicts in their contracts, if the clients are aware of the waiver, and if the contract delineates the types of future representations that may arise. c) No, attorneys cannot ever include waivers of future conflicts in contracts. d) No, attorneys cannot include waivers of future conflicts in contracts specifically for financial claims. Rule 1.7 Cmt 22 24. A certain attorney represents Conglomerate Corporation in a regulatory compliance matter, drafting documents for Conglomerate to file with the Securities and Exchange Commission and the Federal Trade Commission regarding executive salaries (for the SEC) and product market share (for the FTC’s antitrust inquiry). Conglomerate Corporation owns or co-owns numerous subsidiaries and affiliates in unrelated industries. This attorney’s retainer agreement limits his representation exclusively to the SEC and FTC regulatory matters. Victim hires the attorney to represent him in a personal injury suit against Subsidiary Corporation, partly owned by Conglomerate Corporation, over a slip and fall accident in Subsidiary’s parking lot. Is it proper for the attorney to represent Victim in a tort action against an affiliate or subsidiary of his other client, Conglomerate Corporation? a) Yes, a lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary, and the lawyer for an organization may provide representation adverse to an affiliate in an unrelated matter. b) Yes, so long as the attorney obtains written informed consent from both Victim and the legal representative of Conglomerate Corporation, after explaining the conflict of interest fully to each client. 17 c) No, unless the attorney obtains written informed consent from both Victim and the corporate director of Conglomerate. d) No, because the parties are directly adverse in litigation, and therefore the conflict of interest described here is nonconsentable under the Rules of Professional Conduct. Rule 1.7 Cmt.34 25. The Workers’ Union at a manufacturing plant is having annual collective bargaining negotiations with the Management. Wages and benefits are not in dispute this year, as the parties reached an agreement in the previous year’s collective bargaining about a five-year schedule for wages and benefits that was acceptable to both the Union and Management. The sole issue in dispute this year is about hiring. The Workers’ Union wants the plant to hire five or six new assembly line workers so that there will be more efficiency and more flexibility for workers requesting days off or changes in their shifts. The Management wants to hire fewer new workers, potentially two at most, to keep payroll costs down and their stock share prices high. The Union and Management agree to hire a certain attorney, an experienced labor lawyer at an outside firm, to facilitate the collective bargaining negotiations. Neither side is currently expecting a breakdown in bargaining that would lead to litigation. Would it be proper for the attorney to have both the Union and the Management as clients while facilitating the negotiations? a) Yes, assuming both clients provide written informed consent, common representation is permissible where the clients’ interests mostly align, even though there is some difference in interest among them, so a lawyer may seek an agreement between them on an amicable and mutually advantageous basis b) Yes, because conflicts of interest rules do not apply outside the litigation arena, and the parties here are not litigating and do not expect to litigate, but instead are merely hiring the attorney to facilitate negotiations of an issue where the two sides are not far apart. c) No, because the parties’ interests are directly adverse, and a lawyer may not seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis. d) No, because conflicts of interest in a negotiation situation are nonconsentable, as no lawyer would be reasonable to believe that the conflict of interest would not materially limit his ability to represent both sides; this is especially true of collective bargaining in the employment context. Rule 1.7 Cmt 28 26. Two brothers work together in a family landscaping business, and each is a named defendant in a lawsuit over a broken sewage pipe on a client’s property where the brothers were digging holes to plant new trees. The two brothers hire their family’s attorney to represent them. Though the brothers get along reasonably well, there are several topics they avoid discussing, especially related to family matters and the inheritance, and who is to blame for some lost clients and damaged equipment in the recent past. Then the attorney explains the potential for conflicts of interest in the common representation and asks if they are willing to sign a waiver to the conflicts. One asks the lawyer privately about the issue of confidentiality and privileged information, because it is possible that litigation could emerge within the family later over various issues – the inheritance, control of the business, liability for business losses, and even a marital dispute. Does the common representation have implications for the attorney-client privilege? a) Yes, regarding the attorney-client privilege, the prevailing rule is that, as between jointly represented clients, the privilege does not attach, and lawyers should assume that if litigation eventuates between the clients, the privilege will not protect any such communications. b) Yes, regarding the attorney-client privilege, the prevailing rule is that, as between jointly represented clients, common representation provides extra protections for privileged information, and this is one of the main benefits of sharing the same lawyer. 18 c) No, regarding the attorney-client privilege, the prevailing rule is that, as between jointly represented clients, attorney-client privilege still applies to all communications between each client and the lawyer, so clients sharing a lawyer should know that the lawyer may not disclose to them confidential information from the other clients. d) No, regarding the attorney-client privilege, the prevailing rule is that, as between jointly represented clients, the lawyer may not have ex parte communications with any of the clients, but all communications must occur when all clients are present, to safeguard the privilege. Rule 1.7 Cmt 30 27. A producer of popular energy drinks and the owner of a popular chain of video-rental kiosks wanted to undertake a joint venture to distribute energy drinks and DVD rentals through the same kiosks. They approached a certain attorney to work out the details of the joint venture and draft the necessary legal documents. The attorney would provide common representation to both as clients in the matter. As part of obtaining informed consent from the clients regarding potential conflicts, the attorney explains that all information would be available to the other client, even information that otherwise would have been confidential information in a normal representation with a single client. Then the attorney explains he will have to withdraw if one client insists that the attorney keep certain information from the other, if the information was relevant and material to the representation. The energy drink maker, however, has a secret formula for the drinks, and the DVD kiosk owner has a trade-secret method of tracking the distribution and stocking of the DVDs in the kiosks minute-by-minute. Neither wanted the other to discover their trade secrets, but the attorney may eventually possess the secrets as part of his document review for the joint venture. Neither client clearly needs to know the trade secrets of the other, however, to proceed with the joint venture. Eventually, the attorney concludes that failure to disclose one client's trade secrets to another client would not adversely affect the representation in this case and agrees to keep that information confidential with the informed consent of both clients. Is the attorney’s conduct proper? a) Yes, in limited circumstances like this, it would be appropriate for the lawyer to proceed with the representation when the clients have agreed, after receiving adequate disclosures, that the lawyer will keep certain information confidential. b) Yes, because no litigation is pending between the clients and the lawyer has not represented them before in other matters, and both are willing to provide written informed consent to the conflicts inherent in common representation. c) No, continued common representation will certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. d) No, because the lawyer has an equal duty of loyalty to each client, and each client has the right to know about anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. Rule 1.7 Cmt 31 28. A certain attorney agrees to represent a group of three individuals in the same matter, a business transaction. Their interests are not directly adverse. This attorney has represented each of the clients in separate matters previously, and he is already working under a retainer to do legal work for each under the same hourly rates. Two of the clients are currently traveling overseas, but everyone agrees to the representation by conference call. The attorney explains potential conflicts of interest that could arise in common representation, and all clients consent orally to the common representation despite the potential conflicts. Then the attorney proceeds with working 19 on their matter for three weeks until all the clients are back from traveling and can sign written consent forms. By that time, the attorney has completed 50 hours of work, and has acquired significant confidential information by and about each of the three clients. Would the attorney be subject to discipline for performing this legal work before obtaining written consent to the conflict by each conflict? a) Yes, because common representation requires informed consent in writing from each client at the outset of representation. b) Yes, because the fact that it was a transactional matter and not litigation means that the attorney could easily have waited three weeks until all clients could be present to sign written consent forms. c) No, it was not feasible to obtain or transmit the writing at the time the client gives informed consent, so the lawyer could obtain or transmit it within a reasonable time thereafter. d) No, because oral consent to a conflict of interest is enough when the parties are not directly adverse and each already has an established relationship with the attorney. Rule 1.7 Cmt 20 Rule 1.8: Conflict of Interest & Current Clients: Specific Rules 29. An attorney represented an indigent client in a civil rights claim matter on a pro bono basis. The client had trouble paying rent or affording basic living expenses. The attorney and the client had recurring disagreements about litigation strategy and tactics, and at one point the client informed the lawyer that he wanted to terminate the representation and either find another lawyer to drop the matter. The attorney thought the client was merely discouraged, so he offered to provide some financial assistant to the client – just enough to cover rent, food, and other basic living expenses until the case concluded. The client agreed to continue with the representation. Was the attorney’s conduct improper? a) Yes, lawyers may never subsidize lawsuits brought on behalf of their clients, including making loans to their clients for living expenses, because such assistance gives lawyers too great a financial stake in the litigation. b) Yes, even under the exception that allows lawyers to provide financial assistance to an indigent client in a pro bono matter, a lawyer may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention. c) No, financial assistance, including modest gifts for food, rent, transportation, medicine, and other basic living expenses, may be provided even if the representation is eligible for fees under a fee-shifting statute. d) No, the Model Rules permit lawyers to provide assistance in other contemplated or pending litigation in which the lawyer may eventually recover a fee, such as contingent-fee personal injury cases or cases in which fees may be available under a contractual fee-shifting provision. Rule 1.8(e)(3)(i) 20 30. An attorney agreed to represent an indigent client pro bono in a litigation matter. The client had no money for food or medicines or other living expenses, so the attorney gave the client some money for food, transportation, medicine, and other basic living expenses. The representation was successful, and the client prevailed an recovered a modest amount of compensatory damages, so the representation concluded. During the representation, the attorney learned that the client had a wealthy brother with whom the client would not associate due to an offense that had occurred years before. A month after the representation ended, the client died, and the wealthy brother contacted the attorney to thank him for all he had done for the client, and offered to reimburse the attorney for the financial assistance he had provided during the previous months, which over time added up to a few thousand dollars. The attorney did not ask for this but he gladly accepted it. Did the attorney act properly, according to the Model Rules? a) Yes, modest gifts to indigent clients for living expenses are permissible in specific circumstances where the lawyer does not seek or receive reimbursement from the client, and in this case, the reimbursement did not come from the client. b) Yes, a lawyer representing an indigent client without fee may give the client modest contributions for food, rent, transportation, medicine, and similar basic necessities of life. c) No, lawyers may not provide any financial assistance to clients in litigation matters. d) No, if a lawyer representing an indigent client gives the client modest contributions for food and similar basic necessities of life, the lawyer may not seek or accept reimbursement from a relative of the client or anyone affiliated with the client. Rule 1.8(e)(3)(ii) 31. An attorney agreed to represent an indigent client pro bono in a landlord-tenant dispute. The client had no money for food or medicines or other living expenses, so the attorney gave the client some money for food, transportation, medicine, and other basic living expenses. The representation was successful, and the client was able to stay in the apartment, so the representation concluded. The attorney represented other indigent clients on a pro bono basis and advertised this practice on his website, including a short video in which the attorney claimed he was always willing to help struggling clients in this way. Were the attorney’s actions permissible under the Model Rules? a) Yes, modest gifts to indigent clients for living expenses are permissible in specific circumstances where the lawyer does not seek or receive reimbursement from the client, so long as the lawyer receives no reimbursement from the clients or their families. b) Yes, a lawyer representing an indigent client without fee may give the client modest contributions for food, rent, transportation, medicine, and similar basic necessities of life. c) No, if a lawyer representing an indigent client gives the client modest contributions for food and similar basic necessities of life, the lawyer may not publicize or advertise a willingness to provide such gifts to prospective clients. d) No, lawyers may not provide any financial assistance to clients in litigation matters. Rule 1.8(e)(3)(iii) 32. An attorney agreed to represent a new client in a potential litigation matter, but the client had insufficient funds to pay the attorney’s fees. Instead, the client asked the attorney to propose an amount that would be a reasonable fixed fee for the matter. The client then offered to sign over title to a small parcel of real estate worth about the same amount as the proposed fixed fee, and the attorney agreed. The value of the property, and the proposed fixed fee, were fair and 21 reasonable, and the client agreed to these terms in writing. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney’s role in the transaction. Based on these facts, could the attorney be subject to discipline for violating the provisions Model Rule 1.8 that govern business transactions with clients? a) Yes, because a lawyer must meet the written notice requirements of Model Rule 1.8 when the lawyer accepts an interest in the client's business or other nonmonetary property as payment of all or part of a fee. b) Yes, because an attorney may not accept an ownership interest in the client’s property as part of the fee for undertaking a representation in a litigation matter. c) No, because Rule 1.8 does not apply to ordinary fee arrangements between client and lawyer. d) No, because the fee was fair and reasonable, and the attorney provided the terms to the client in written form. Rule 1.8(a) Cmt. 1 33. An attorney represented a client who was a stockbroker in a boundary dispute with the client’s neighbor. Before the conclusion of the representation, the attorney also made some personal investments using the same client’s brokerage services, receiving the same terms, services, and fee waivers that other customers of the brokerage firm received. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney’s role in the transaction. The terms of the brokerage services agreement were in writing, as usual. Based on these facts, were the attorney’s actions proper in this transaction? a) Yes, because the essential terms of the agreement were in writing, and it does not appear that the attorney charged the client any additional legal fees for this transaction. b) Yes, this is a standard commercial transaction between the attorney and the client for a service that the client normally would market to others. c) No, because the attorney did not advise the client in writing to seek the opinion of independent legal counsel for this transaction. d) No, the client did not provide signed, written consent regarding about the attorney’s role in the transaction. Rule 1.8(a) Cmt. 1 34. An attorney, a venture capitalist, and a land developer agreed to form a corporation to develop a new shopping mall. Their agreement allocates ownership shares based on the appraised value of the venture capitalist’s land, which he is contributing for this enterprise, the market value of the developer’s design and construction work, and the attorney’s regular fees for the hours contributed to the formation and ongoing representation as corporate counsel. The attorney was already representing both the venture capitalist and the developer as his clients in unrelated matters. Which of the following is NOT a duty of the attorney in this situation, if the attorney performs the others? a) The attorney must fully disclose in writing all the terms of the development corporation ownership agreement to the developer and the venture capitalist in language they understand, and the terms of the agreement are objectively fair and reasonable the two clients. b) The attorney must advise the developer and the venture capitalist in writing that they should obtain the advice of independent legal counsel on the transaction, and give them time to do so; 22 c) The attorney must withdraw from representing the venture capitalist and the developer on the other matters, at least until the process of forming the corporation is complete, to avoid conflicts of interest. d) The venture capitalist and the developer give informed consent, in writing, to the terms of the transaction and the attorney’s role in the transaction, including whether the attorney is representing them in the transaction. Rule 1.8(a); RESTATEMENT § 126 35. An attorney made an agreement to borrow money from a client who had received a large inheritance. The attorney agreed to pay the client the same interest rate that banks in that area were charging for unsecured business loans, and she gave the client a detailed written disclosure of the terms and conditions of the loan, with phrasing that a nonlawyer could understand. The client gave written, signed consent to the essential terms of the loan, including the fact that the attorney was not representing the client in the transaction. During one of their conversations about the loan, the attorney also advised the client in writing that it would be prudent to obtain the advice of another lawyer about the transaction, and she offered to give the client time to find another lawyer, but the client did not want to do this. Upon consummation of the agreement, the client transferred the loan amount to the attorney, who made regular payments according to the terms of the agreement, eventually repaying the full amount with interest. Based on these facts, were the attorney’s actions proper in this transaction? a) Yes, because the attorney repaid the loan with interest, so the client suffered no adverse consequences. b) Yes, because the attorney complied with the requirements of the Model Rules for this type of transaction with a client. c) No, based on the facts here, the client did not sign the written advisement to seek the opinion of independent legal counsel. d) No, it was impermissible for the attorney to borrow money from a current client, even though the attorney fully repaid the loan. Rule 1.8(a) 36. A transactional attorney agreed to represent a new client who already had representation by trial counsel on another matter. The client agreed to a complex fee arrangement, which included a fixed flat fee for the first phase of the transaction, a modest hourly rate for the remainder of the transaction, and a modest contingent fee in addition to these other fees, scaled to the outcome of the transaction – that is, a higher contingent fee for obtaining more favorable final terms in the transaction. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney’s role in the transaction. The client’s other lawyer reviewed the terms of the fee agreement and advised the client to accept it. Based on these facts, could the attorney be subject to discipline for violating the provisions Model Rule 1.8 that govern business transactions with clients? a) Yes, because the attorney did not advise the client in writing to seek the opinion of independent legal counsel for this transaction. b) Yes, the client did not provide signed, written consent regarding about the attorney’s role in the transaction. c) No, because the client had representation by another lawyer in the transaction. 23 d) No, because Rule 1.8 does not apply to ordinary fee arrangements between client and lawyer. Rule 1.8(a) Cmt. 1 37. A certain attorney represents a client in a civil suit. The client and the attorney often discuss their hunting trips and have gone hunting together on several occasions. The client tells the attorney he is purchasing a piece of property for hunting with five other people and asks the attorney if he would like to go in on the purchase. The attorney tells the client he would like to join in the purchase and he provides the client with a check for his portion of the purchase price. Is the attorney subject to discipline? a) Yes, attorneys shall not enter into transactions with clients that result in joint ownership of property. b) Yes, attorneys shall not engage in social activities with current clients or enter into transactions that result in joint ownership of property. c) No, attorneys may enter into transactions with clients assuming the transactions are not related to the current representation of the client and the client gives informed consent. d) No, attorneys can enter into fair and reasonable business transactions with clients assuming the client receives an advisory in writing of the benefit of seeking advice from independent counsel and gives informed consent, in writing and signed by the client, of the transaction details. Rule 1.8(a) 38. An attorney represented a client in a litigation matter, and while the matter was still pending, the attorney and the client also agreed to purchase an investment property together. The client had another lawyer who regularly represented the client in transactional matters, but not litigation. The litigation attorney and the client contributed equal amounts toward the purchase of the investment property, and each received an equal share. The attorney did not advise the client in writing of the desirability of obtaining the opinion of independent legal counsel in the transaction, but the client nevertheless asked his other lawyer, who handled the client’s transactional matters, to review the terms and render an opinion. The other lawyer provided the client with a written disclosure of the terms and conditions of the agreement and recommended that the client proceed. Did the litigation attorney act properly in this transaction, purchasing an investment property with the client? a) Yes, because the client had representation by another lawyer in the transaction. b) Yes, because the joint investment did not relate to the attorney’s representation of the client, which pertained to a litigation matter. c) No, because the attorney did not advise the client in writing to seek the opinion of independent legal counsel for this transaction. d) No, because the transaction was not fair and reasonable to the client. Rule 1.8(a) Cmt. 4 39. A certain client needed to sell a parcel of real estate to pay off a large amount of credit card debt. He brought this situation to the attention of his attorney, who was representing him in his interactions with collection agencies and credit bureaus. The attorney offered to purchase the property immediately for the full amount of the client’s outstanding credit card debt – just over a hundred thousand dollars – without delaying the matter by arranging a mortgage first, or having the property appraised. The client was disappointed, because he thought the property was worth 24 more than that, but he agreed due to his dire financial circumstances. The attorney fully disclosed the terms of the purchase to the client, in understandable written form, and advised the client in writing that it would be prudent to consult with another lawyer about the transaction, which the client could not realistically afford to do. The client gave written, informed consent to the terms of the sale and the attorney’s role in the transaction. Two months later, the attorney sold the property to a developer for three times the amount he had paid for it. Did the attorney act within the requirements of the Model Rules? a) Yes, the lawyer complied with the Model Rules’ notice requirements for business transactions with clients. b) Yes, because the client felt disappointed after the transaction, and the attorney should have given more consideration to the client’s feelings. c) No, because the client could not realistically afford to obtain the advice of independent legal counsel regarding the transaction. d) No, because the transaction was objectively unfair. Committee on Prof. Ethics v. Baker, 269 N.W.2d 463 (Iowa 1978) Rule 1.8(a); RESTATEMENT § 126 40. An attorney has a successful blog about legal practice, and the blog generates substantial side income for the attorney. The attorney posts entertaining stories about his clients that attract the attention of his readers and make the blog successful and lucrative. He does not obtain client consent for these posts, but he is careful 1) not to post anything that would seriously injure the client’s reputation or legal interests, and 2) not to post information about individuals that is truly confidential, that is not part of the public record. On the other hand, he does post about his personal observations and opinions of clients and their lifestyles, and often shares generalizations based on confidential information of former clients, such as: “On three occasions I’ve had clients who lived a double life, maintaining separate families in separate cities, and their families never knew.” Another post recounted, “Last year I had a client who admitted after the case ended that he had been sleeping with one of the jurors.” Apart from potential violations of Rule 1.6 (client confidentiality), which of the following is true? a) The attorney may share non-confidential information and opinions about clients in a public forum that generates revenue for the lawyer. b) The attorney can share confidential information about clients on social media after the representation has ended, if the client has refused to pay the legal fees owed to the attorney. c) The attorney can share information on monetized social media about what transpired in the courtroom, except in cases with a sealed record, because normally courtroom proceedings are public. d) The attorney has a common-law fiduciary duty not to profit from using client information even if the use complies with the lawyer's ethical obligations, without accounting to the client for any profits made. ABA Formal Ethics Op. 18-480 (2018), fn. 16, citing RESTATEMENT § 60(2) 41. Asylum Now is a nonprofit organization that advocates for refugees and immigrants from poor countries. The Board of Directors for Asylum Now wants to bring a test case in federal court to challenge the constitutionality of detaining refugees who enter the country under duress without a visa. Asylum Now has offered to pay an attorney to seek the release of a certain refugee currently in federal detention, and to use this case to challenge current federal laws and 25 regulations that mandate such detentions. The refugee consents to the representation, as well as the payment of legal fees by Asylum Now, and agrees to have his case be the test case that might benefit others. During the representation, the attorney meets several times with the directors of Asylum Now to discuss how to frame their argument in the case in a way that would shape public policy in the right direction. Is it permissible for the attorney to undertake the representation, given this arrangement? a) Yes, the attorney may accept payment by Asylum Now and may agree to make contentions that Asylum Now wishes to have tested by the litigation. b) Yes, if the attorney agrees to prioritize the interests of Asylum Now as the payor over the personal wishes of the refugee, who is merely a representative of the larger class of victims that will benefit from the litigation. c) No, a lawyer may not accept compensation for representing a client from one other than the client d) No, a lawyer may accept payment from a third party, but that party cannot ask the lawyer how the representation is progressing. Rule 1.8(f); RESTATEMENT § 134 42. An attorney was preparing a will for one of her wealthy elderly clients. The client had no surviving family members – her spouse had passed away years before, as had her siblings, and she had no children. The client asked the attorney for suggestions about potential beneficiaries of the estate, besides her favorite charities, and she offered to leave the attorney some items. The attorney replied, “Well, I’ve represented you on various matters over the years, and I have always looked out for your best interests, so I would not object if you included me in the will. I’ve always admired your collection of antique furniture and books.” The client was delighted by the idea and instructed the attorney to include a provision in the will bequeathing all the antique furniture and books in her large home to the attorney. The attorney prepared the will as instructed and the client executed it. Was the attorney’s conduct proper? a) Yes, because the client asked her for suggestions about potential heirs and was excited about leaving something in the will to the attorney. b) Yes, because the attorney was not depriving any other potential heirs of the specific items she requested, as the client had no surviving relatives. c) No, because the way the attorney suggested a specific bequest was manipulative and the elderly client was vulnerable to coercion or exploitation. d) No, because the attorney should not have prepared the will if the document made a significant bequest to the attorney. Rule 1.8(c) 43. A certain attorney, a partner at a law firm, prepares a will for Sister. In the will, Sister directs the attorney to receive a substantial part of her estate. Then the attorney also recommends Sister appoint the attorney as the executor of the will because of his knowledge in this field. The attorney explains to Sister the role of the executor and the pay the executor of the estate will receive and discussed alternative executor choices with her. In addition, the attorney recommends Sister seek independent legal counsel regarding the issue of the executor. Sister does so, and then she asks the attorney to list him as executor in the will. Is the attorney subject to discipline? a) Yes, attorneys cannot include substantial gifts to themselves in legal instruments such as wills prepared by the attorney for the client. 26 b) Yes, attorneys cannot recommend that a client appoint the attorney as the executor unless the client obtains the advice of independent legal counsel and gives informed consent confirmed in writing. c) No, attorneys may permissibly include gifts to themselves in a will prepared by an attorney for a person related to the attorney, even if the gift is substantial. d) No, an attorney may recommend the client appoint the attorney as executor assuming the client receives advice from independent legal counsel regarding the appointment of the attorney as executor prior to signing the will. Rule 1.8(c) 44. A certain attorney obtained a successful outcome in a client’s matter, and the client was grateful. The client sent the attorney a gift basket that year as a holiday gift, containing high- quality fresh fruit, sample-size jars of gourmet fruit preserves, and a few other delicacies. The gift basket cost the client $50. Is it proper for the attorney to accept this gift, or must the attorney refuse it? a) Yes, because assuming a lawyer does not solicit the gift, there is no restriction on lawyers accepting unsolicited gifts from clients. b) Yes, a lawyer may accept a simple gift such as a present given at a holiday or as a token of appreciation. c) No, a lawyer shall not accept any substantial gift from a client, unless the lawyer or other recipient of the gift is a relative of the client. d) No, because the lawyer’s entire compensation for obtaining the favorable outcome should have been in the original retainer agreement and its schedule of fees, so any additional compensation or transfers from a client to a lawyer constitute an unwritten modification of the retainer agreement. Rule 1.8(c) Cmt. 6 45. A client hires an attorney to represent her in business litigation. Another lawyer in the firm, unknown to the attorney, approaches the client with a proposal for an unrelated business transaction, the sale of a parcel of real estate adjacent to the lawyer’s own land. The client agrees to sell the other lawyer in the firm the parcel of real estate for a reasonable price. The lawyer is not involved at all in the representation of the client and works exclusively in the estate-planning department of the firm, rather than in litigation. Must the lawyer nevertheless advise the client in writing of the desirability of seeking the advice of independent legal counsel, and obtain written informed consent from the client before proceeding with the purchase? a) Yes, because the fact that the lawyer owns the adjacent real estate to the client’s parcel of land means that he has a special conflict of interest with the client that would not necessarily apply to the other lawyers in the same firm. b) Yes, because a prohibition on conduct by an individual lawyer under the conflicts of interest rules would automatically apply to all lawyers associated in a firm with the personally prohibited lawyer, even if the first lawyer is not personally involved in the representation of the client. c) No, because the lawyer who is buying the real estate from the client is not involved in the representation of the client, and the Rules of Profession Conduct would not impute the attorney’s potential conflicts of interest to the other lawyers in the firm. d) No, because the lawyer is willing to pay a fair and reasonable price for the parcel of land, so there is no risk that the transaction will be to the disadvantage of the client. Rule 1.8(k) 27 46. An attorney had his own firm specializing in small business transactions. The clients were small business owners who did not have in-house counsel or other legal representation. His representation agreements with clients included all necessary disclosures, fee schedules and rates, and a clause stipulating that all potential legal malpractice claims would go through binding arbitration. The attorney would explain this term fully to each client, but he would decline representation for any potential client who would not agree to binding arbitration. The attorney did this in hopes of limiting his future malpractice liability to clients. Was it permissible for the attorney to do this? a) Yes, because the clients gave informed consent, confirmed in writing. b) Yes, a lawyer may make an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the lawyer fully informs the client of the scope and effect of the agreement. c) No, a lawyer may not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client has independent legal representation in making the agreement. d) No, a lawyer cannot make a binding arbitration agreement with a client if the lawyer’s purpose in doing so is to limit the lawyer’s liability for future malpractice claims by the client. Rule 18(h) Cmt. 14 47. An attorney regularly represented clients in transactional matters. While she was representing a certain client in negotiating and drafting a contract, the client asked the attorney to represent her in a lawsuit as well. The attorney felt nervous because she rarely did litigation work, so she asked the client to sign a waiver of potential malpractice claims that could arise from the litigation work. She orally advised the client to talk to another lawyer about the waiver before signing it, but the client felt that she already had legal representation, as this attorney was handling her transactional matters. The client readily agreed to the waiver. The attorney competently handled the litigation matter, and the case settled before trial with a favorable result for the client. Could the attorney be subject to discipline for obtaining a malpractice waiver from the client? a) Yes, the attorney is making an agreement prospectively limiting the lawyer's liability to a client for malpractice, and the client does not have independent representation in making the agreement. b) Yes, because she did not advise the client in writing about the desirability of seeking independent legal counsel about the waiver, but merely gave an oral recommendation. c) No, the client already had legal representation from the attorney on another matter, so is was permissible for the attorney to make an agreement limiting future malpractice claims. d) No, the waiver was moot because the attorney did not commit malpractice and the client obtained a favorable result. Rule 1.8(h) 48. An attorney worked in the legal department of Conglomerate Corporation for a few years, then left there to start his own firm. His experience at Conglomerate proved useful, as he regularly represented some of Conglomerate’s newer industry rivals in their transactional and pre- litigation work – small startup businesses that did not have in-house counsel. Whenever a new client needed legal representation in a matter that could potentially be adverse to the legal interests of one of his other clients, the attorney would obtain informed consent, confirmed in writing to the potential conflict of interest. In such cases, the attorney would also ask new clients to sign a waiver of liability for all potential legal malpractice by the attorney. Attached to the waiver was a cover sheet explaining what the waiver entailed, the downsides for the client in 28 signing a waiver, and recommending the client seek the advice of independent legal counsel in connection therewith. As with the consent to conflicts of interest, the clients normally gave informed consent, confirmed in writing, to the waiver of malpractice claims against the attorney. Could the attorney be subject to discipline, based on these facts? a) Yes, because the attorney is representing industry rivals or competitors of his former client and employer, Conglomerate Corporation, without obtaining Conglomerate’s consent. b) Yes, because the attorney is making an agreement prospectively limiting the lawyer's liability to a client for malpractice, and the client does not have independent representation in making the agreement. c) No, the clients gave informed consent, confirmed in writing, to both the conflict of interest and the waiver of malpractice claims. d) No, the attorney advised the clients in writing of the desirability of seeking the advice of independent legal counsel in connection therewith. Rule 1.8(h) 49. A plaintiff who had prevailed at trial needed representation for the appeal, because the defendant in the case appealed the verdict. Plaintiff’s counsel did only trial work, not appellate work, and referred the client to an appellate attorney nearby. The trial lawyer even offered to accompany the plaintiff to the initial consultation with the appellate attorney to help facilitate the transition and to safeguard his client’s interests in retaining new counsel. Instead, the plaintiff fired the trial lawyer, terminating the representation, and then went alone to the consultation with the appellate attorney. The appellate attorney asked the plaintiff to sign an agreement waiving potential malpractice claims against the appellate attorney, because the appellate attorney did not want to be responsible for the trial lawyer’s mistakes. The appellate attorney did not inform the plaintiff fully about the risks or downsides of waiving future malpractice claims, nor did he advise the plaintiff of the desirability of seeking the advice of independent legal counsel in connection therewith. Could the attorney be subject to discipline, based on these facts? a) Yes, because the plaintiff already had independent representation by counsel, so it was improper for the attorney to attempt to shift all potential liability onto another lawyer. b) Yes, the attorney made an agreement with an otherwise unrepresented client that prospectively limited his liability for malpractice. c) No, the plaintiff already had independent legal counsel in connection to the malpractice waiver. d) No, when a lawyer brings another attorney into the matter to assist with an appeal, the lawyers and the client must agree in writing about how they will allocate responsibility and legal fees for the representation. Rule 1.8(h) 50. A plaintiff who had prevailed at trial needed representation for the appeal, because the defendant in the case appealed the verdict. Plaintiff’s counsel did only trial work, not appellate work, and referred the client to an appellate attorney nearby. The trial lawyer even accompanied the plaintiff to the initial consultation with the appellate attorney to help facilitate the transition and to safeguard his client’s interests in retaining new counsel. The appellate attorney asked the plaintiff to sign an agreement waiving potential malpractice claims against the appellate attorney, because the plaintiff had not yet terminated the representation with her trial lawyer, and the appellate attorney did not want to be responsible for the trial lawyer’s mistakes. The appellate attorney did not inform the plaintiff fully about the risks or downsides of waiving future malpractice claims, nor did he advise the plaintiff of the desirability of seeking the advice of independent legal counsel in connection therewith. Could the attorney be subject to discipline, based on these facts? 29 a) Yes, because the plaintiff already had independent representation by counsel, so it was improper for the attorney to attempt to shift all potential liability onto another lawyer. b) Yes, the attorney made an agreement prospectively limiting his liability to a client for malpractice. c) No, when a lawyer brings another attorney into the matter to assist with an appeal, the lawyers and the client must agree in writing about how they will allocate responsibility and legal fees for the representation. d) No, the plaintiff already had independent legal counsel in connection to the malpractice waiver. Rule 1.8(h) 51. An experienced attorney had his own solo law practice. The attorney agreed to provide representation to a cer

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