Practice Questions for Professional Responsibility

2016 PRACTICE QUESTIONS FOR PROFESSIONAL RESPONSIBILITY COURSE SUPPLEMENT Prof. Drury Stevenson 1 © 2016 Drury D. Stevenson ISBN-13:978-1519678638 ISBN-10:1519678630 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. Note for students: These 345 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). This particular archive of questions are a supplement to the author’s recently-published Glannon Guide to Professional Responsibility The Glannon Guide provides detailed explanations for each of its questions (more than 170 questions), as well as a helpful introduction to each topic. This book provides only an answer key, but has more questions. All the questions will be very useful in preparing for the exam in Professor Stevenson’s course, as well as the MPRE itself. 2 Table of Contents PART I: Material Covered on the Mid-Term Exam And Final Exam…………………….5 1. Conflicts of interest………………………………..7 2. The Client-Lawyer Relationship…………………45 3. Litigation & Other Forms of Advocacy…………78 4. Competence, Malpractice, & Other Liability….104 5. Client Confidentiality……………………………115 PART II: Material Covered Only on the Final Exam….129 6. Regulation of the Legal Profession……………...130 7. Communications About Legal Services……........169 8. Different Roles Of The Lawyer………………….193 9. Transactions and Communications with Persons Other Than Clients……………………..208 10. Safekeeping Funds and Other Property..............215 3 4 PART I: MATERIAL COVERED BY MID-SEMESTER 5 6 CONFLICTS OF INTEREST: Rules 1.7-1.12 Rule 1.7 Conflict of Interest: Current Clients 1. Attorney had been representing Client in a purely transactional matter, drafting incorporation documents for Client’s business, as well as other commercial lease and sale agreements. None of Attorney’s work for Client has involved information about the Client’s finances or assets. As a result, Attorney did not know anything about the average income, assets, or insurance of Client’s business, or even for Client personally, except that he has duly incorporated the business under state law. On a wholly unrelated matter, Victim approached Attorney seeking representation for a lawsuit over damage to Victim’s expensive car in a parking lot when Client negligently scraped Victim’s car while trying to back out of a parking space with his own vehicle. During the initial interview, Victim gave very few details about the accident or the scope of damages, except to identify Client as the intended defendant and that the incident involved a scraped fender in a restaurant parking lot. The attorney believed there was no significant risk that the representation of Client would materially limit the Attorney’s responsibilities to Victim, and vice-versa. The attorney’s representation of Client involved only the drafting of a few standard documents for Client’s business, and Victim’s claim did not relate to the business at all, but to Client’s conduct outside of work while driving his personal car in a parking lot. Because the attorney believed there was no conflict here, he did not seek consent from either party, although he mentioned to Victim that he had drafted some documents for Client’s business, and Client would obviously learn about the representation of Victim when Attorney filed the lawsuit. May an attorney proceed with representing Victim in this case? a) Yes, because there is no conflict when a lawyer acts as an advocate in one matter against a person the lawyer represents in some other matter, as long as the matters are wholly unrelated. b) Yes, because Attorney did not receive any relevant confidential information from either party so far that he could use against the other in the anticipated litigation. c) No, because absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. d) No, because Attorney already violated the rules of confidentiality by telling Victim about how he drafted business documents for Client. 2. Attorney has been representing Client in a simple adoption of an orphan from Zimbabwe. Corporation then hires Attorney to defend it against a defective-products lawsuit brought by Victim, whom Attorney does not represent. During the discovery phase of litigation, before trial, Victim’s lawyers disclose the list of witnesses they plan to call to support Victim’s claims of injuries and the scope of damages. Attorney notices that Client, for whom he has been handling an adoption matter, is going to 7 testify at trial in support of Victim’s claims, against Corporation. Client is still unaware that Attorney is representing Corporation, and Client is merely testifying as a friend of Victim about Victim’s character traits of caution and care, and the suffering Victim has endured since the incident with Corporation’s defective product. Attorney was not aware that Client even knew Victim, and unsurprisingly did not obtain consent from Client, Corporation, or Victim about this issue. Is Attorney subject to disqualification in this case? a) Yes, because a lawyer who normally handles adoptions is probably not competent to represent a corporation in litigation over defective products. b) Yes, a directly adverse conflict may arise when a lawyer is required to cross- examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. c) No, because Client is merely a witness in the matter and not a party to the litigation, so Client’s interests are not directly adverse to Attorney’s other client, Corporation. d) No, because neither Client nor Attorney were aware, or could have been aware, that Client would end up testifying in a case in support of a party to whom Attorney would be opposing counsel. 3. Attorney is representing two French restaurants located across the street from each other; the restaurants are bitter rivals and have sued each other in the past, using other lawyers. They are the only French restaurants in that area, so they compete for the same customers – their menus, décor, and prices are very similar. The owners were childhood friends who became sworn enemies as adults when one started a restaurant to compete with the other. Attorney represents one French restaurant in a dispute with its landlord, and the other French restaurant in a lawsuit by a former employee who claims she was wrongfully terminated for discriminatory reasons. When each French restaurant learns that Attorney represents the other, they both express deep dismay and some sense of betrayal, given that each is the other’s worst enemy. One of the French restaurants believes Attorney has a conflict of interest and complains to the state bar. The other French restaurant, when it loses its lawsuit with its former employee, sues Attorney claiming that he had a conflict of interest in the representation. Does Attorney have a conflict of interest here? a) Yes, simultaneous representation in unrelated matters of clients whose interests are economically adverse, such as representation of competing economic enterprises in unrelated litigation, ordinarily constitutes a conflict of interest and requires consent of the respective clients. b) Yes, the state bar will use a subjective test for determining a conflict of interest – whether the client would feel betrayed or perceive a conflict in the situation – and could sanction Attorney, but the conflict here does not reach the level of malpractice. c) No, the fact that one client resorted to a malpractice tort claim precludes the state bar from pursuing disciplinary action against the Attorney; and the malpractice claim will fail as the lawyer’s conduct could not have changed the outcome of the underlying employment case, which depended entirely on statutory rights. 8 d) No, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients. 4. 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 clients 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. 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. 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 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.

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