V. Duty Of Competence

2.

Attorney Alpha was retained by Client to represent Client in defense of an action brought against Client by Plaintiff. In order to obtain ample time for settlement negotiations, Alpha immediately requested and obtained from opposing counsel, Attorney Beta, a stipulation extending Client's time to answer the complaint until ten days after receipt of written demand from Beta. Four months later, no settlement had been reached, and on May 1, Beta wrote Alpha demanding that an answer be filed within ten days. When no answer was filed by May 15, Beta had a default judgment entered in favor of Plaintiff. Alpha was away on a two-month vacation when Beta's letter was received in her office. When Alpha returned on June 15, she promptly moved to have the default set aside and her motion was granted. Is Alpha subject to discipline?

Yes, unless she makes restitution to Client for any loss sustained by Client.
Yes, if she did not make provision for the handling of her pending cases while she was away.
No, because the default judgment was set aside.
No, unless she knew that Beta had demanded that an answer be filed within ten days.

Correct Answer

A. Yes, if she did not make provision for the handling of her pending cases while she was away.

Explanation

A lawyer must act with reasonable diligence and promptness in representing a client [MR 1.3]. Under MR 1.3, cmts. [2-4], a lawyer should especially attend to: (1) controlling workload, (2) avoiding unreasonable delay and procrastination, (3) filing within the statute of limitations, and (4) carrying representation through to completion and ensuring clients know when representation ends. Here, Alpha went on vacation, and did not assign anyone to handle Client's pending case.

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3.

Alpha & Beta is a large firm that employs over 100 lawyers. Attorney Gamma was recently admitted to practice and was hired as a new associate of Alpha & Beta. Gamma was working late one night when he received a telephone call from his cousin Able. Able said that he was calling from the police station where he had just been arrested for possession of cocaine with intent to distribute. He was permitted to make only one phone call, and Gamma was the only lawyer he knew. Gamma responded that he had no criminal law experience and that Alpha & Beta did not handle criminal cases. Nevertheless, Able pleaded with Gamma to come to the police station and see what he could do to get Able out on bail. Gamma replied that he would do what he could. Gamma went to the police station and using what information he recalled from his criminal law and procedure courses attempted to get Able released on bail. However, as a result of his inexperience, Gamma was unable to secure Able's release that night. The next morning, Gamma found an experienced criminal lawyer for Able, who obtained Able's release within one hour. Was Gamma's conduct proper?

Yes, because neither referral nor consultation was practical under the circumstances.
Yes, because Gamma was a close relative of Able.
No, because Gamma had no special training or experience in criminal cases.
No, because Gamma did not have the requisite level of competence to accept representation in the case.

Correct Answer

A. Yes, because neither referral nor consultation was practical under the circumstances.

Explanation

Under MR 1.1, cmt. [1], factors used to assess the sufficiency of a lawyer's knowledge and skill include whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field. In an emergency, a lawyer may give advice or assistance to a client in need, even if he lacks the skill or knowledge ordinarily required, and referral to or consultation with another lawyer is impractical [MR 1.1, cmt. [3]]. The lawyer should limit emergency assistance to that reasonably necessary under the circumstances [Id.].Here, Gamma received a telephone call from Able late at night from a police station. It was not feasible for Gamma to consult with another lawyer at night. Able was arrested at the police station, and provided with just one phone call. Though Gamma lacked experience in criminal law, it was an emergency situation because Able wanted to be released.

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4.

Leaving an airport, Attorney, who primarily practices criminal law, shared a cab with Doctor, a medical doctor. The cab was involved in a collision, and Doctor was seriously injured, while Attorney was only shaken up. Attorney accompanied Doctor to the hospital in the ambulance. Doctor believed that she was dying and asked Attorney to prepare a simple will for her. Attorney told Doctor, "I have never prepared a will, but hope that I can remember the basics from law school." Attorney then complied with Doctor's request. Doctor signed the will, and the two paramedics in the ambulance signed as witnesses. Was it proper for Attorney to prepare the will?

Yes, unless Attorney omitted some required formality that rendered the will invalid.
Yes, because Attorney provided legal services that were reasonably necessary under the circumstances.
No, unless Doctor waived Attorney's malpractice liability.
No, because Attorney did not have the skill required for the representation.

Correct Answer

A. Yes, because Attorney provided legal services that were reasonably necessary under the circumstances.

Explanation

"Under MR 1.1, cmt. [1], factors used to assess the sufficiency of a lawyer's knowledge and skill include whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field. In an emergency, a lawyer may give advice or assistance to a client in need, even if she lacks the skill or knowledge ordinarily required, and referral to or consultation with another lawyer is impractical [MR 1.1, cmt. [3]]. The lawyer should limit emergency assistance to that reasonably necessary under the circumstances [Id.]. In this case, it was proper for Attorney to assist Doctor in drafting and executing a will even though Attorney lacked competence because he had never prepared a will before. Doctor, however, believed she was dying so this was an emergency situation. Furthermore, there were no other attorneys available for Attorney to feasibly refer to, or associate or consult with. As such, it was proper for the Attorney to prepare the will.
"

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5.

Attorney represented Buyer in a real estate transaction. Due to Attorney's negligence in drafting the purchase agreement, Buyer was required to pay for a survey that should have been paid by Seller, the other party to the transaction. Attorney fully disclosed this negligence to Buyer, and Buyer suggested that he would be satisfied if Attorney simply reimbursed Buyer for the entire cost of the survey. Although Buyer might have recovered additional damages if a malpractice action were filed, Attorney reasonably believed that the proposed settlement was fair to Buyer. Accordingly, in order to forestall a malpractice action, Attorney readily agreed to make the reimbursement. Attorney drafted a settlement agreement, and it was executed by both Attorney and Buyer. Was Attorney's conduct proper?

Yes, if Attorney advised Buyer in writing that Buyer should seek independent representation before deciding to enter into the settlement agreement.
Yes, because Attorney reasonably believed that the proposed settlement was fair to Buyer.
No, because Attorney settled a case involving liability for malpractice while the matter was still ongoing.
No, unless Buyer was separately represented in negotiating and finalizing the settlement agreement.

Correct Answer

A. Yes, if Attorney advised Buyer in writing that Buyer should seek independent representation before deciding to enter into the settlement agreement.

Explanation

"Under MR 1.8(h)(1), an attorney may not settle a pending or potential malpractice claim with a client without advising the client in writing to seek independent legal counsel and giving the client time to do so. Here, Attorney's conduct was proper if Attorney if Attorney advised Buyer in writing that Buyer should seek independent representation before entering into the settlement agreement.
"

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6.

An attorney, a member of the state legislature, is allowed to engage in private practice under state law. The attorney represents a plaintiff in a personal injury case. The attorney reasonably believes that the trial of the case will last at least two weeks. When the case was first scheduled for trial, the attorney requested a continuance, truthfully stating, \As the court knows I am a member of the legislature which will be going into special session next week. Because of my legislative duties I must be in the state capitol for the duration of the session.\"The defendant objected to the continuance but the court granted it. Is the attorney subject to discipline?"

Yes, because the defendant objected to the continuance.
Yes, because the attorney used her public position to influence a tribunal.
No, because the attorney's statements to the court were truthful.
No, unless the continuance will give the plaintiff an advantage in the litigation.

Correct Answer

A. No, because the attorney's statements to the court were truthful.

Explanation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. Occasional postponement for personal reasons is ok. In this case, since the attorney's statements to the court regarding the reason for the continuance were truthful, the attorney would not be subject to discpline.

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7.

Client, a new client of Attorney, has asked Attorney to write a letter recommending Client's nephew for admission to the bar. Client has told Attorney that he has no direct contact with the nephew, but that Client's sister (the nephew's mother) has assured Client that the nephew is industrious and honest. Which of the following would be proper for Attorney? I. Write the letter on the basis of Client's assurance. II. Write the letter on the basis of Client's assurance if Attorney has no unfavorable information about the nephew. III. Make an independent investigation and write the letter only if Attorney is thereafter satisfied that the nephew is qualified.

Yes, unless the state offers free continuing legal education courses.
Yes, if Gamma independently undertakes continuing study and education in the law.
No, because Gamma cannot maintain competence without attending continuing legal education courses.
No, unless Gamma obtains malpractice insurance.

Correct Answer

A. Yes, unless the state offers free continuing legal education courses.

Explanation

A lawyer should always keep up-to-date about changes in the law through continuing education and self-education [MR 1.1, cmt. [6]]. The CLE requirement may be met either by attending approved courses or completing any other CLE approved for credit. Self-study, teaching, writing for CLE publications, participation in educational activities involving the use of computer-based resources, and in-office law firm CLE efforts may also be considered for credit.

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8.

State does not require lawyers to participate in continuing legal education courses. Attorneys Alpha, Beta, and Gamma, all lawyers recently admitted to practice, formed a law partnership in State. As they considered what expenses the partnership would pay on behalf of each lawyer, a majority decided that the firm would not pay for continuing legal education courses since they were not required by State. Gamma, who wanted reimbursement for continuing legal education courses, angrily said, \Fine. I won't attend any continuing legal education courses.\" Is it proper for Gamma to refuse to attend any continuing legal education courses?"

III only
I and II, but not III
I and III, but not II
I, II, and III

Correct Answer

A. I and II, but not III

Explanation

Applicants for admission to the bar, and lawyers in connection with a bar admission application or a disciplinary matter, must not knowingly make a false statement of material fact, fail to disclose a fact necessary to correct a misapprehension, or knowingly fail to respond to a lawful demand for non-confidential information [MR 8.1]. A lawyer who writes a letter of recommendation for a bar candidate or who is asked by bar authorities for information about a bar candidate is subject to the same rule [MR 8.1, cmt. [1]]. III is proper. Only after an independent investigation into nephew?s background can Attorney provide a personal opinion so as to not knowingly make a false material fact regarding nephew's qualifications.

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9.

Alpha is a member of the bar in State First and is also licensed as a stockbroker in State Second. In his application for renewal of his stockbroker's license in State Second, Alpha knowingly filed a false financial statement. Is Alpha subject to discipline in State First for so doing?

Yes, because his actions involve dishonesty or misrepresentation.
Yes, but only if he is first convicted of a criminal offense in State Second.
No, because his action was not in his capacity as an attorney.
No, because his action was not in State First.

Correct Answer

A. Yes, because his actions involve dishonesty or misrepresentation.

Explanation

Under MR 8.4(c), it is professional misconduct for a lawyer to engage in any conduct involving dishonesty, fraud, deceit, or misrepresentation. Fraud means conduct that (1) is fraudulent under the substantive or procedural law of the applicable jurisdiction and (2) has a purpose to deceive. Here, Alpha?s willful filing of a false financial statement violates MR 8.4(c).

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10.

Attorney is a sole practitioner whose practice is largely in the areas of tax, wills, estates, and trusts. Attorney learned of a new Internal Revenue Service (IRS) regulation that probably affects the trust provisions in a will she prepared for Testatrix two years ago. Attorney has not represented Testatrix since she drew the will. Is Attorney subject to discipline if she calls Testatrix and advises her of the new IRS ruling and the need to revise the will?

Yes, if Attorney has any reason to believe that Testatrix has another lawyer.
Yes, because Attorney would be soliciting legal business from a person who is not a current client.
No, provided Attorney does not thereafter prepare a new will for Testatrix.
No, because Testatrix is a former client of Attorney.

Correct Answer

A. No, because Testatrix is a former client of Attorney.

Explanation

A lawyer has the right to solicit former clients for additional legal services [MR 7.3(a)].Here, Attorney drew up a will for Testatrix and the recent tax law changes made it advisable to change the will. As such, Attorney has the right to initiate in person contact with a former client, and suggest updating the will.

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11.

Deft retained Attorney to appeal Deft's criminal conviction and to seek bail pending appeal. The agreed fee for the appearance on the bail hearing was $50 per hour. Attorney received $800 from Deft of which $300 was a deposit to secure Attorney's fee and $500 was for bail costs in the event that bail was obtained. Attorney maintained two office bank accounts: a "Fee Account," in which all fees were deposited and from which all office expenses were paid, and a "Clients' Fund Account." Attorney deposited the $800 in the "Clients' Fund Account" the week before the bail hearing. Attorney expended six hours of time on the bail hearing. The effort to obtain bail was unsuccessful. Dissatisfied, Deft immediately demanded return of the $800. It is now proper for Attorney to:

Transfer the $800 to the "Fee Account."
Transfer $300 to the "Fee Account" and leave $500 in the "Clients' Fund Account" until Attorney's fee for the final appeal is determined.
Transfer $300 to the "Fee Account" and send Deft a $500 check on the "Clients' Fund Account."
Send Deft a $500 check and leave $300 in the "Clients' Fund Account" until the matter is resolved with Deft.

Correct Answer

A. Send Deft a $500 check and leave $300 in the "Clients' Fund Account" until the matter is resolved with Deft.

Explanation

When two or more persons (one of whom may be the lawyer) claim interest in the client?s property, the lawyer must keep it separate until the dispute is resolved. However, the lawyer must promptly distribute all portions of the property not in dispute [MR 1.15(e)].Here, Attorney received $800 from Deft of which $300 was a deposit to secure Attorney?s fee and $500 was for bail costs in the event bail was obtained. The agreed fee for the appearance on the bail hearing was $50 per hour. Attorney expended six hours of time on the bail hearing. The effort to obtain bail was unsuccessful. Deft demanded return of $800. As such, Attorney must return the $500 undisputed amount, and keep the $300 disputed amount in the Clients? Fund Account until the parties resolve the dispute.

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12.

Judge Alpha has been assigned to try a criminal prosecution by State against Deft. Ten years previously, Alpha, while serving as a deputy attorney general in State, initiated an investigation of Deft for suspected criminal conduct. The investigation did not establish any basis for prosecution. None of the matters previously investigated is involved in or affects the present prosecution. Is it proper for Judge Alpha to try the case?

Yes, because none of the matters previously investigated is involved in or affects the present case.
Yes, unless Alpha might be prejudiced against Deft because of the prior investigation.
No, if Alpha had substantial responsibility in initiating the previous investigation of Deft.
No, if Alpha had substantial responsibility in determining that the previous investigation did not establish any basis for prosecution.

Correct Answer

A. Yes, unless Alpha might be prejudiced against Deft because of the prior investigation.

Explanation

Under CJC 2.11(A), a judge must disqualify herself in a proceeding in which her impartiality may reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party or a party?s lawyer.Here, if Judge Alpha is prejudiced against Deft, it is not proper for Judge Alpha to try the case.

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13.

Attorney represented Landlord in a variety of matters over several years. Plaint, an elderly widow living on public assistance, filed suit against Landlord alleging that Landlord withheld without justification the security deposit on a rental unit that Plaint vacated three years ago. She brought the action for herself, without counsel, in small claims court. Attorney investigated the claim and learned that it was legally barred by the applicable statute of limitations, although Plaint's underlying claim was meritorious. Attorney told Landlord of the legal defense, but emphasized that Plaint's claim was just and that, in all fairness, the security deposit should be returned to Plaint. Attorney told Landlord: "I strongly recommend that you pay Plaint the full amount with interest. It is against your long-term business interests to be known in the community as a landlord who routinely withholds security deposits even though the tenant leaves the apartment in good condition. Paying the claim now will prevent future headaches for you." Was Attorney's conduct proper?

Yes, if Landlord did not object to Attorney's advice and paid Plaint's claim.
Yes, because Attorney may refer to both legal and nonlegal considerations in advising a client.
No, unless Attorney's engagement letter informed Landlord that Attorney's advice on the matter would include both legal and nonlegal considerations.
No, because in advising Landlord to pay the full claim, Attorney failed to represent zealously Landlord's legal interests.

Correct Answer

A. Yes, because Attorney may refer to both legal and nonlegal considerations in advising a client.

Explanation

In representing a client, lawyer must exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law, but also to other considerations such as moral, economic, social, and political factors that may be relevant to the client?s situation [MR 2.1, cmt. [2]].In this case, Attorney?s legal advice referred to legal and business interests of Landlord and, as such, there is nothing improper about Attorney?s conduct.

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14.

Attorney is a member of the bar and a salaried employee of the trust department of Bank. As part of his duties, he prepares a monthly newsletter concerning wills, trusts, estates, and taxes which Bank sends to all of its customers. The newsletter contains a recommendation to the customer to review his or her will in light of the information contained and, if the customer has any questions, to bring the will to Bank's trust department where the trust officer will answer any questions without charge. The trust officer is not a lawyer. If the trust officer is unable to answer the customer's questions, the trust officer refers the customer to Attorney. Is Attorney subject to discipline for the foregoing?

Yes, because Attorney is giving legal advice to persons who are not his clients.
Yes, because Attorney is aiding Bank in the unauthorized practice of law.
No, because no charge is made for Attorney's advice.
No, because Attorney is a member of the bar.

Correct Answer

A. Yes, because Attorney is aiding Bank in the unauthorized practice of law.

Explanation

Law–related services are services that might reasonably be performed in conjunction with and, in substance, are related to the provision of legal services and not prohibited as the unauthorized practice of law when provided by a non–lawyer [MR 5.7(b)]. Law–related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting [MR 5.7, cmt. [9]]. A lawyer may not assist another person in the unauthorized practice of law [MR 5.5, cmt. [1]]. A bank may not provide legal services to its customers through a salaried lawyer because Banks are not authorized to practice law.Here, the trust officer, a non–lawyer, may provide trust services, a law–related service, without Attorney being subject to discipline, but the newsletter Attorney prepares recommends customers to bring questions on wills to the trust officer. Answering questions on wills is not a law–related service but rather the practice of law. As such, Attorney is aiding Bank in the unauthorized practice of law.

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15.

Attorney wants to make it easier for her clients to pay their bills for her fees. Which of the following would be proper for Attorney? I. Accept bank credit cards in payment of Attorney's fees. II. Arrange for clients to obtain bank loans for the purpose of paying Attorney's fees. III. If a case is interesting, suggest that the client give Attorney publication rights concerning the case as partial payment of the fee.

II only
I and II, but not III
I, II, and III
Neither I, II, nor III

Correct Answer

A. I and II, but not III

Explanation

I and II are allowed because a lawyer may collect a fee through a credit card or by arranging a bank loan for a client. III is not allowed because a lawyer may not obtain or negotiate literary or media rights to a portrayal or account regarding a pending representation prior to the conclusion of the representation [MR 1.8(d)].

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16.

Attorney practices law in a state that has experienced a business recession and where several banks have failed and others are severely pressed to preserve their solvency. Attorney maintains a Clients' Trust Account in Bank and that account is insured by the Federal Deposit Insurance Corporation against losses up to $100,000. Attorney also maintains his regular office account in the same bank and that account is insured to $100,000. During a particularly busy time, Attorney's bookkeeper told Attorney that the balance in the Clients' Trust Account had increased to $150,000. The bookkeeper noted that the office account had a balance of $30,000. Which of the following courses of action by Attorney would be proper? I. Leave the Clients' Trust Account as is if the balance is likely to decrease to less than $100,000 within the next ten days. II. Open another Clients' Trust Account in another bank and transfer some funds to the second Clients' Trust Account to maintain a fully insured balance in both accounts. III. Temporarily transfer $50,000 from the Clients' Trust Account to the office account so the balance in both accounts is fully within insured limits.

I only
II only
I and II, but not III
II and III, but not I

Correct Answer

A. II only

Explanation

The lawyer must safeguard, account for, client property. Property must be kept safe [MR 1.15]. Here, there is a risk of loss for $50,000 of clients' funds for not being insured with Bank. To prevent this loss, Attorney should open another Clients' Trust Account in another bank so the $50,000 is insured against risk of loss.

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17.

Law Firm, a professional corporation with five lawyer shareholders, employs twenty-five additional lawyers. Which of the following is(are) proper? I. Employees who are members of the bar are not made shareholders until they have been with Law Firm ten years. II. Manager, who is the office manager but not a member of the bar, is executive vice president of Law Firm. III. Widow, whose husband was a lawyer shareholder in Law Firm until his death two years ago, continues to hold husband's shares in Law Firm, distributed in his estate, until their child completes a law school education.

I only
I and II, but not III
I and III, but not II
I, II, and III

Correct Answer

A. I only

Explanation

There are no ethical standards that a law firm needs to follow when deciding when (if ever) a lawyer will become a shareholder of a corporate law firm.

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18.

Attorney, who was recently admitted to the bar, has been appointed by the court as counsel for Deft, an indigent defendant charged with a felony. After consulting with Deft and attempting for two days to prepare the case for trial, Attorney became convinced that he lacked the knowledge and experience to represent Deft effectively. Which of the following would be proper for Attorney? I. Request permission of the court to withdraw from representing Deft because Attorney knows that he is not competent to handle the case. II. Request the court to appoint experienced co-counsel and grant a continuance to enable co-counsel to prepare the case. III. Explain the circumstances to Deft and, if Deft consents, proceed to represent Deft alone to the best of Attorney's ability.

I only
I and II, but not III
II and III, but not I
I, II, and III

Correct Answer

A. I and II, but not III

Explanation

"If the lawyer is not competent to handle the representation, she may: (1) decline or withdraw from representation, (2) take action to make herself competent to handle the representation, or (3) associate with competent counsel. The client's consent to representation when an attorney is not competent does not release the attorney from the duty of competence [MR 1.1]. Even if there is good cause to terminate a representation, the lawyer may have to continue representing a client if ordered to do so by a court [MR 1.16(c)]. I is correct because incompetence is good cause for Attorney to request permission of the court to withdraw.II is correct because if Attorney is not competent, Attorney may associate with competent counsel. III is incorrect, however, because Deft's consent to Attorney representing Deft to the best of Attorney's abilities does not release Attorney from the duty of competence.
"

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19.

While an assistant district attorney, Attorney Alpha was in charge of the presentation before a grand jury of evidence that led to an indictment charging thirty-two defendants with conspiracy to sell controlled drugs. Shortly after the grand jury returned the indictments, Alpha resigned as assistant district attorney and became an associate in the law office of Attorney Beta, a sole practitioner. At the time of such association, Beta was the attorney for Deft, one of the indicted co-defendants. Is it proper for Attorney Beta to continue to represent Deft?

Yes, if Alpha does not reveal to Beta any confidence or secret learned while an assistant district attorney.
Yes, because a public prosecutor must make timely disclosure to the defense attorney of any exculpatory evidence.
No, unless Alpha agrees not to participate in the representation of Deft.
No, because Alpha had substantial responsibility for the indictment of Deft.

Correct Answer

A. No, because Alpha had substantial responsibility for the indictment of Deft.

Explanation

A lawyer cannot represent a private party against a government agency in a matter in which the lawyer participated personally and substantially while working for the government, unless the government agency gives its consent, in writing, to the representation [MR 1.11(c)]. As a general rule, when one attorney is disqualified, the whole firm is also disqualified. This is called imputed disqualification [MR 1.10(a)]. Imputed disqualification is based on a presumption that all partners and associates in a firm know about all cases. As such, the knowledge of one lawyer working on a case is imputed to all the others while that lawyer is at the firm [MR 1.10, cmt. [3]].

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20.

Judge is presently serving on a state intermediate appellate court. This court, in opinions written by her, has decided several controversial cases in which the court has held that the Fourteenth Amendment to the United States Constitution does not guarantee due process protection to state prison inmates who are disciplined by prison authorities for violating the prison's rules of conduct. Judge is now a candidate for election to a vacancy on the state supreme court. She is vigorously opposed by several organizations concerned with the conditions under which prisoners are incarcerated in the state's prison. Judge is scheduled to be interviewed on television and has been informed that questions will be asked of her concerning those decisions and her attitude on the subject of prisoners' rights. Which of the following is it proper for Judge to say during the interview? I. "I believe that the issues raised by the organizations opposing me are appropriate matters for legislative consideration." II. "In my opinion, incarceration for the commission of a crime carries with it a loss of civil liberties in prison discipline proceedings." III. "I am convinced I was right in those cases and will make the same decision in similar cases in the future."

I only
II only
I and II, but not III
I, II, and III

Correct Answer

A. I only

Explanation

A judge or candidate for judicial office may not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary [CJC Canon 4].I acknowledges opposing views and does not insert any personal opinions.

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21.

Attorney was formerly employed by Insurance Company as a lawyer solely to handle fire insurance claims. While so employed she investigated a fire loss claim of Claimant against Insurance Company. Attorney is now in private practice. Assume the claim has not been settled and Claimant consults Attorney and asks Attorney either to represent him or refer him to another lawyer for suit on the claim. Which of the following would be proper for Attorney to do? I. Refuse to discuss the matter with Claimant. II. Represent Claimant. III. Refer Claimant to an associate in her law firm, provided Attorney does not share in any fee. IV. Give Claimant a list of lawyers who Attorney knows are competent and specialize in such claims.

I only
I and II, but not III or IV
I and III, but not II or IV
I and IV, but not II or III

Correct Answer

A. I and IV, but not II or III

Explanation

"A lawyer representing an organization represents the organization as an entity through its duly authorized constituents, but does not represent the individual employees. A lawyer must act in the best interests of the organization. A lawyer who has formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation [MR 1.9(a)]. As a general rule, when one attorney is disqualified from representing a client, the whole firm is disqualified. This is called imputed disqualification [MR 1.10(a)]. Imputed disqualification is based on the presumption all partners and associates in a firm know about all cases. The knowledge of one lawyer working on a case is imputed to all the others while that lawyer is at the firm [MR 1.10, cmt. [3]]. I and IV are proper because lawyers in the United States are generally free to refuse service to any person for any reason. A lawyer may refer clients to another lawyer. II is not proper because as a former employee of Insurance Company, Insurance Company was Attorney?s former client. While an employee of Insurance Company, Attorney worked on the same matter, which is not settled, and the subject of Claimant's suit. Attorney may not represent Claimant, who has interests adverse to Insurance Company, unless Insurance Company consents in writing after consultation.III is not proper because an associate in Attorney's firm is disqualified from representing Claimant based on imputed disqualification.
"

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22.

Attorney was formerly employed by Insurance Company as a lawyer solely to handle fire insurance claims. While so employed she investigated a fire loss claim of Claimant against Insurance Company. Attorney is now in private practice. Assume that the original claim was settled. One year after Attorney left the employ of Insurance Company, Claimant slipped and fell in Insurance Company's office. Claimant now asks Attorney to represent him or refer him to another lawyer for suit on the \slip and fall\" claim. Which of the following would be proper for Attorney to do? I. Refuse to discuss the matter with Claimant. II. Represent Claimant. III. Give Claimant a list of lawyers who Attorney knows are competent and specialize in such claims."

I only
I and II, but not III
I and III, but not II
I, II, and III

Correct Answer

A. I, II, and III

Explanation

"Lawyers in the United States are generally free to refuse service to any person for any reason. A lawyer may refer clients to another lawyer. A lawyer representing an organization represents the organization as an entity through its duly authorized constituents, but does not represent the individual employees. A lawyer must act in the best interests of the organization. A lawyer who has formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation [MR 1.9(a)]. I is proper, but II and III are also proper, so answer choice A is not the best choice.II is proper because as a former employee of Insurance Company, Insurance Company was Attorney's former client. Attorney may not represent Claimant relating to the fire loss claim, which Attorney investigated, and where Claimant has interests adverse to Insurance Company, unless Insurance Company consents in writing after consultation. The fire loss claim, however, has been settled and Claimant is asking Attorney to represent Claimant in the "slip and fall" claim, not the same or a substantially related matter to any work Attorney did while employed by Insurance Company. Therefore, Attorney can represent Claimant.
"

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23.

Client has retained Attorney to represent Client in a contract suit. Attorney's retainer agreement provided that Attorney's fees would be based on a fixed hourly rate, payable at the end of each calendar month. Two months before trial, Client fell behind in the payment of Attorney's monthly billing for fees. Attorney included the following statement on Attorney's last billing to Client: "Your account is more than thirty days past due. If amounts due are not paid promptly in accordance with our agreement, I will terminate the representation. If you cannot pay the amount due, I will accept an assignment of your cause of action as security for your fee to me." Two weeks after the last billing, Attorney telephoned Client and told Client that Attorney would withdraw from representing Client if the bill was not paid within forty-eight hours or adequate security given for its payment. If the bill remains unpaid or unsecured after forty-eight hours, it would be proper for Attorney to: I. upon notice to Client, move the court for permission to withdraw. II. turn Client's file over to another experienced lawyer in town and notify Client that Attorney no longer represents Client. III. accept an assignment of Client's cause of action as security for Attorney's fee.

I only
II only
I and II, but not III
I, II, and III

Correct Answer

A. I only

Explanation

Under MR 1.16(b), withdrawal is permitted if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client, (2) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services (e.g. payment of fees), and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled, (3) the representation will result in an unreasonable financial burden on the lawyer, or has been rendered unreasonably difficult by the client, or (4) other good cause for withdrawal exists. Even if there is good cause to terminate a representation, the lawyer may have to continue representing a client if ordered to do so by a court [MR 1.16(c)]. The court's approval or notice will likely be required if the lawyer is representing the client in pending litigation.Here, Attorney represents Client in a pending contract suit. Though, non–payment of bills may be good cause to withdraw, Attorney may need to give notice to Client that Attorney will obtain an order from the court to withdraw.

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24.

Attorney's advertisement in the local newspaper includes the following information, all of which is true: I. Attorney, B.A., magna cum laude, Eastern College; J.D., summa cum laude, State Law School; LL.M., Eastern Law School. II. My offices are open Monday through Friday from 9:00 a.m. to 5:00 p.m., but you may call my answering service twenty-four hours a day, seven days a week. III. I speak modern Greek fluently. For which, if any, of these statements is Attorney subject to discipline?

III only
I and II, but not III
I, II, and III
Neither I, II, nor III

Correct Answer

A. Neither I, II, nor III

Explanation

Advertising is permitted as long as the communication is not misleading and in accordance with MR 7.1 [MR 7.2]. MR 7.1 permits a lawyer to use any form of public communication about the lawyer's services that is not false or misleading. A lawyer may advertise through written, recorded, or electronic communication, including public media [MR 7.2(a)]. All ads must include the name and office address of at least one attorney or law firm [MR 7.2(c)]. Here, Attorney may advertise through the newspaper, a form of public media. The facts also state that the information in I, II, and III is true. I is proper because it provides Attorney's name and is not false or misleading. II and III are proper because the statements are not false or misleading.

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25.

The law firm of Alpha and Beta has a radio commercial which states: \Do you have a legal problem? Are you being sued? Consult Alpha and Beta licensed attorneys at law. Initial conference charge is $25 for one hour. Act now and protect your interests. Call at 1234 Main Street; telephone area code (101) 123-4567.\" Are Alpha and Beta subject to discipline for the commercial?"

Yes, because the qualifications of the lawyers are not stated.
Yes, because the radio broadcast may encourage litigation.
No, if all the statements in the radio broadcast are true.
No, unless the radio broadcast is heard outside the state in which they are licensed.

Correct Answer

A. No, if all the statements in the radio broadcast are true.

Explanation

"Advertising is permitted as long as the communication is not misleading and in accordance with MR 7.1 [MR 7.2]. MR 7.1 permits a lawyer to use any form of public communication to advertise the lawyer's services as long as the advertisement is not false or misleading. A lawyer may advertise through written, recorded, or electronic communication, including public media [MR 7.2(a)]. All ads must include the name and office address of at least one attorney or law firm [MR 7.2(c)]. Here, Alpha and Beta may advertise through the radio, a form of public media. Answer choice C states, "if all the statements in the radio broadcast are true." This means none of the statements are false or misleading. The advertisement also provides the name and office address of at least one attorney or law firm. As such, Alpha and Beta would not be subject to discipline for the commercial if all the statements in the radio broadcast are true.
"

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26.

Attorney Alpha represents Client, the plaintiff in a medical malpractice case. Alpha's contract with Client provides for a contingent fee of 20% of the recovery by settlement and 30% if the case is tried, with a total fee not to exceed $50,000. Alpha associated Attorney Beta, a sole practitioner, in the case, with Client's written consent and after full disclosure of the fee agreement between Alpha and Beta. Beta is both a medical doctor and a lawyer and is well qualified by experience and training to try medical malpractice cases. The fee agreement between Alpha and Beta reads as follows: The total fee in this case is 20% of recovery by settlement and 30%, if tried, with a maximum fee of $50,000. Alpha will help with discovery and will be the liaison person with Client. Beta will prepare the case and try it if it is not settled. Alpha and Beta will divide the fee, 40% to Alpha and 60% to Beta. Are Alpha and Beta subject to discipline for their agreement for division of the fee?

Yes, unless Client's consent is in writing.
Yes, because Alpha will not try the case.
No, if the division of the fee between Alpha and Beta is in proportion to actual work done by each.
No, because the total fee does not differ from that contracted for by Alpha with Client.

Correct Answer

A. No, if the division of the fee between Alpha and Beta is in proportion to actual work done by each.

Explanation

"Under MR 1.5(e), a fee can be divided between lawyers who are not in the same firm if, the: (1) division is in proportion to the services performed by each lawyer, (2) client agrees to the arrangement in writing, and (3) total fee is reasonable. Here, two lawyers, Alpha and Beta, of different law firms, arranged to divide fees, with Client?s written consent. If the total fee is reasonable and the division of fee between Alpha and Beta is in proportion to actual work done by each, Alpha and Beta are not subject to discipline.
"

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27.

Attorney Alpha was retained by Client to incorporate Client's business, which previously had been operated as a sole proprietorship. Alpha noticed in Client's file copies of some correspondence from Client to Attorney Beta concerning the possibility of Beta's incorporating Client's business. Alpha questioned Client to make certain that any attorney-client relationship between Beta and Client had been terminated. Client told Alpha, "It certainly has been terminated. When I discussed the matter with Beta six months ago, he asked for a retainer of $1,000, which I paid him. He did absolutely nothing after he got the money, even though I called him weekly, and finally, last week when I again complained, he returned the retainer. But don't say anything about it because Beta is an old friend of my family." Is Alpha subject to discipline if she does not report her knowledge of Beta's conduct to the appropriate authority?

Yes, if Alpha believes Beta clearly was guilty of professional misconduct.
Yes, unless Alpha believes Beta does not usually neglect matters entrusted to him.
No, if Client was satisfied by Beta's return of the retainer.
No, unless Client agrees that Alpha may report the information.

Correct Answer

A. No, unless Client agrees that Alpha may report the information.

Explanation

"Generally, a lawyer cannot reveal information relating to the representation of a client, including information protected by the attorney–client privilege under applicable law [MR 1.6(a)]. A lawyer who has knowledge of a violation of the Rules that raises a question as to any lawyer's honesty, trustworthiness, or fitness as a lawyer must inform the appropriate professional authority [MR 8.3(a)]. A report is not required where it would involve disclosure of confidential information otherwise protected by MR 1.6 [MR 8.3, cmt. [2]]. Here, Alpha discovered the misconduct by Beta from Client's files, information relating to the representation of a client. Alpha does not need to report Beta's violation of the Rules, unless Client agrees. Since Client told Alpha "But don?t say anything about it?," Client does not agree.
"

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1

28.

Alpha & Beta, a general partnership, is a litigation firm practicing in State. It hires new law school graduates as associates. These new lawyers are largely left to their own resources to practice law. Alpha & Beta accepts many small litigation matters and assigns them to the associates for training purposes. No senior partners are assigned to supervise this work. It is assumed that if an associate needs help on a case, he or she will seek the guidance of a more senior attorney. Client retained Alpha & Beta to pursue a claim for breach of contract against City. Associate, a first year associate, was assigned Client's case. Associate failed to comply with the applicable 30-day notice requirement for filing a complaint against City, and Client lost the chance to recover $5,000 owed to Client by City. When the complaint was dismissed for failure to comply with the notice requirement, Associate instead told Client that the case was dismissed on the merits. Which of the following statements are correct? I. The law firm of Alpha & Beta is subject to discipline for failure to supervise Associate. II. The individual partners of Alpha & Beta are subject to discipline for failure to make reasonable efforts to establish a system providing reasonable assurance that all lawyers in the firm comply with the rules of professional conduct. III. Associate, an unsupervised subordinate lawyer, is subject to discipline for making misrepresentations to Client. IV. Both the law firm of Alpha & Beta and Associate are subject to civil liability for Client's loss.

II and IV, but not I or III
I, III, and IV, but not II
II, III, and IV, but not I
I, II, III, and IV

Correct Answer

A. II, III, and IV, but not I

Explanation

"Partners and supervising attorneys must make reasonable efforts to establish internal policies and procedures to provide reasonable assurance that all attorneys in their employ comply with ethical rules [MR 5.1, cmt. [2]]. The precise measures required to fulfill these obligations depend on the structure and the work of the firm, but should include procedures designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters so deadlines are not missed, account for client funds and property, and ensure inexperienced lawyers are properly supervised. Supervising attorneys are personally responsible for subordinates' ethical violations if they order or ratify the subordinates' work. A subordinate lawyer must follow the Rules even when acting under the directions of another person [MR 5.2]. An employer is vicariously liable for tortuous acts committed by its employee if the acts occur within the scope of employment. To be within the scope of employment, the conduct need not be actually authorized. A competent lawyer may act incompetently in a client representation, and be subject to civil liability for malpractice. I is incorrect because there are no Rules requiring a law firm to supervise a lawyer. The Rules require the managing lawyers, individual partners, or direct supervising lawyers to supervise Associate.II is correct because the Rules relating to a lawyer who directly supervises, or is a law firm partner or managing lawyer, requires the lawyer to make reasonable efforts to assure the subordinate lawyer adheres to the Rules [MR 5.1(b)]. III is correct because Associate's own ethical duties remain [MR 5.1, cmt. [8], MR 5.2].IV is correct because the law firm, as Associate's employer, is vicariously liable for Client's loss. Associate is personally liable for Client's loss because Associate incompetently failed to comply with a notice requirement.
"

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29.

Attorney, who represented Plaintiff, received a check from Deft payable to Attorney's order in the sum of $10,000 in settlement of Plaintiff's claim against Deft. Plaintiff had previously paid Attorney a fee so no part of the $10,000 was owed to Attorney. Which of the following would be proper? I. Endorse the check and send it to Plaintiff II. Deposit the check in Attorney's personal bank account and send Attorney's personal check for $10,000 to Plaintiff III. Deposit the check in a Clients' Trust Account, advise Plaintiff, and forward a check drawn on that account to Plaintiff

I only
III only
I and III, but not II
I, II, and III

Correct Answer

A. I and III, but not II

Explanation

"pon receiving funds or other property in which a client or third person has interest, the lawyer must promptly notify the client or third person [MR 1.15(d)]. A lawyer must promptly deliver to the client or third person any funds or other property the client or third person is entitled to receive, and upon request by the client or third person, must promptly render a full accounting regarding such property [MR 1.15(d)]. In general, a lawyer must hold funds and property of clients or third persons in a client trust account, separate from the lawyer?s own property [MR 1.15(a)]. Complete records of all account funds and property in a client trust account must be kept by the lawyer for five years after representation. The lawyer may withdraw from the client trust account only fees earned or expenses incurred [MR 1.15(c)].
I is proper because no part of the $10,000 belongs to Attorney. Upon receiving $10,000 belonging to Client, Attorney must promptly notify and deliver these funds to Plaintiff.
II is not proper because Attorney must not commingle funds belonging to Client by depositing the funds in Attorney?s personal bank account.
III is also proper because Attorney deposits the $10,000 in a Clients? Trust Account, separate from Attorney?s own property, and forwards the funds drawn on the account to Plaintiff."

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30.

Attorney Alpha has tried many contested cases before Judge Gamma. Alpha believes the judge is lacking both in knowledge of the law and in good judgment and that Attorney Beta would make an excellent judge. Alpha wishes to defeat Judge Gamma and assist Beta in getting elected. Alpha intends to contribute $5,000 to Beta's campaign. Is it proper for Alpha to do so?

Yes, Alpha may give $5,000 to Beta personally for his campaign.
Yes, if Alpha's contribution to Beta is made anonymously.
No, because Alpha is practicing before the court to which Beta seeks election.
No, unless Alpha gives the $5,000 to a committee formed to further Beta's election.

Correct Answer

A. No, unless Alpha gives the $5,000 to a committee formed to further Beta's election.

Explanation

"A judge or judicial candidate may not personally solicit or accept campaign contributions other than through a campaign committee as authorized by CJC 4.4. A judicial candidate may not personally solicit campaign contributions, except as expressly authorized, and may not personally accept campaign contributions [CJC 4.4, cmt. [1]]. As such, Alpha must give any contributions to Beta?s campaign committee.
"

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31.

Attorney Alpha was retained by Passenger, a passenger on a bus, who had been injured in a collision between the bus and a truck. Passenger paid Alpha a retainer of $1,000 and agreed further that Alpha should have a fee of 25% of any recovery before filing suit, 30% of any recovery after suit was filed but before judgment, and 35% of any recovery after trial and judgment. Alpha promptly called the lawyer for the bus company and told him she was representing Passenger and would like to talk about a settlement. Alpha made an appointment to talk to the lawyer for the bus company but did not keep the appointment. Alpha continued to put off talking to the lawyer for the bus company. Meanwhile, Passenger became concerned because she had heard nothing from Alpha. Passenger called Alpha's office but was told Alpha was not in and would not call back. Passenger was told not to worry because Alpha would look after her interests. After ten months had passed, Passenger went to Attorney Beta for advice. Beta advised Passenger that the statute of limitations would run in one week and, with Passenger's consent, immediately filed suit for Passenger. Alpha, upon Passenger's demand, refunded the $1,000 Passenger had paid. Is Alpha subject to discipline?

Yes, unless Alpha's time was completely occupied with work for other clients.
Yes, because Alpha neglected the representation of Passenger.
No, because Passenger's suit was filed before the statute of limitations ran.
No, because Alpha returned the $1,000 retainer to Passenger.

Correct Answer

A. Yes, because Alpha neglected the representation of Passenger.

Explanation

"A lawyer must act with reasonable diligence and promptness in representing a client [MR 1.3]. Under MR 1.3, comments 2–4, a lawyer should especially attend to: (1) controlling workload, (2) avoiding unreasonable delay and procrastination, (3) filing within the statute of limitations, and (4) carrying representation through to completion and ensuring clients know when representation ends. Under MR 1.4(a), in communicating with clients, lawyers must keep the client reasonably informed about the status of the matter, and promptly comply with reasonable requests for information. Competent representation requires the legal knowledge, skill, thoroughness, and preparation necessary for the representation [MR 1.1]. Here, Alpha put off talking to the bus company's lawyer, and did not communicate with Passenger on the status of the case. After ten months passed and the statute of limitations risked running, Passenger had to find another attorney, Beta, to file the suit.
"

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32.

Attorney is a candidate in a contested election for judicial office. Her opponent, Judge, is the incumbent and has occupied the bench for many years. The director of the state commission on judicial conduct, upon inquiry by Attorney, erroneously told Attorney that Judge had been reprimanded by the commission for misconduct in office. Attorney, who had confidence in the director, believed him. In fact, Judge had not been reprimanded by the commission; the commission had conducted hearings on Judge's alleged misconduct in office and, by a three to two vote, declined to reprimand Judge. Decisions of the commission, including reprimands, are not confidential. Is Attorney subject to discipline for publicly stating that Judge had been reprimanded for misconduct?

Yes, because the official records of the commission would have disclosed the truth.
Yes, because Judge had not been reprimanded.
No, because Attorney reasonably relied on the director's information.
No, because Judge was a candidate in a contested election.

Correct Answer

A. No, because Attorney reasonably relied on the director's information.

Explanation

"Under CJC 4.1(A), a judge or judicial candidate may not knowingly or with reckless disregard for the truth, make a false or misleading statement. Here, Attorney made an inquiry into Judge's reprimand so there was no reckless disregard for the truth. Attorney reasonably relied on the director's information, and did not knowingly, or with reckless disregard for the truth, made a false or misleading statement.
"

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33.

Judge is presiding in a case that has, as its main issue, a complicated point of commercial law. The lawyers have not presented the case to Judge's satisfaction, and Judge believes she needs additional legal advice. Judge's former partner in law practice, Attorney, is an expert in the field of law that is at issue. Attorney has no interest in the case. Is it proper for Judge to consult Attorney?

Yes, because Attorney has no interest in the case.
Yes, if Judge believes that Attorney's advice is needed to serve the interests of justice.
No, unless all parties in the case first give their written consent to Judge's consultation with Attorney.
No, unless Judge informs the parties of Attorney's identity and the substance of Attorney's advice, and asks for their responses.

Correct Answer

A. No, unless Judge informs the parties of Attorney's identity and the substance of Attorney's advice, and asks for their responses.

Explanation

"Under CJC 2.9(A)(2), a judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received. If Attorney has no interest in the case, Attorney is a disinterested expert. Judge may not consult Attorney unless Judge gives advance notice to the parties of Attorney and subject matter of the advice, and affords the parties reasonable opportunity to object and respond to the notice and the advice received.
"

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34.

Trustco, a trust company, entered into the following arrangement with Attorney, a lawyer newly admitted to the bar. Trustco would provide Attorney with free office space in the building in which Trustco had its offices. If a customer of Trustco contacted Trustco about a will, an officer of Trustco, who is not a lawyer, would advise the customer and help the customer work out the details of the will. The customer would be informed that the necessary documents would be prepared by Trustco's staff. The completed documents would be submitted by an officer of Trustco to the customer for execution. Attorney, in accordance with a memorandum from Trustco's trust officer detailing the plan, would prepare the necessary documents. Attorney would never meet with the customer and would not charge the customer for these services. Attorney would be free to engage in private practice, subject only to the limitation that Attorney could not accept employment adverse to Trustco. Is Attorney subject to discipline for entering into the arrangement with Trustco?

Yes, because Attorney is restricting his right to practice.
Yes, because Attorney is aiding Trustco in the practice of law.
No, because Attorney is not charging the customer for his services.
No, because Attorney is not giving advice to Trustco's customers.

Correct Answer

A. Yes, because Attorney is aiding Trustco in the practice of law.

Explanation

"Law–related services are services that might reasonably be performed in conjunction with and, in substance, are related to the provision of legal services and not prohibited as the unauthorized practice of law when provided by a non–lawyer [MR 5.7(b)]. Law–related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting [MR 5.7, cmt. [9]]. A lawyer may not assist another person in the unauthorized practice of law [MR 5.5, cmt. [1]]. Trustco may not provide legal services to its customers through a trust officer. Trustco is not authorized to practice law. The trust officer, a non–lawyer, may provide trust services, a law–related service, without Attorney being subject to discipline, but the services here relate to wills. Answering questions on wills is not a law–related service. By preparing the necessary documents for Trustco, Attorney facilitates Trustco in the unauthorized practice of law, though Attorney has no direct contact with customers.
"

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35.

Attorney represented Husband and Wife in the purchase of a business financed by contributions from their respective separate funds. The business was jointly operated by Husband and Wife after acquisition. After several years, a dispute arose over the management of the business. Husband and Wife sought Attorney's advice, and the matter was settled on the basis of an agreement drawn by Attorney and signed by Husband and Wife. Later, Wife asked Attorney to represent her in litigation against Husband based on the claim that Husband was guilty of fraud and misrepresentation in the negotiations for the prior settlement agreement. Is it proper for Attorney to represent Wife in this matter?

Yes, if all information relevant to the litigation was received by Attorney in the presence of both Husband and Wife.
Yes, if there is reason to believe Husband misled both Wife and Attorney at the time of the prior agreement.
No, because Attorney had previously acted for both parties in reaching the agreement now in dispute.
No, unless Husband is now represented by independent counsel.

Correct Answer

A. No, because Attorney had previously acted for both parties in reaching the agreement now in dispute.

Explanation

"A lawyer who has formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation [MR 1.9(a)]. Husband and Wife are former clients of Attorney. Wife?s litigation relates to the same agreement Attorney drafted for Husband and Wife. Wife's interests are adverse to the interests of Husband. As such, Attorney may not represent Wife, unless Husband consents in writing after consultation.
"

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36.

Alpha and Beta are members of the bar in the same community but have never practiced together. Beta is a candidate in a contested election for judicial office. Beta is opposed by Delta, another lawyer in the community. Alpha believes Beta is better qualified than Delta for the judiciary and is supporting Beta's candidacy. Which of the following would be proper for Alpha? I. Solicit public endorsements for Beta's candidacy by other attorneys in the community who know Beta, including those who are likely to appear before Beta if Beta becomes a judge. II. Solicit contributions to Beta's campaign committee from other attorneys in the community, including those who are likely to appear before Beta if Beta becomes a judge. III. Publicly oppose the candidacy of Delta.

I only
I and II, but not III
I and III, but not II
I, II, and III

Correct Answer

A. I, II, and III

Explanation

To protect the integrity of the judiciary, a lawyer is specifically prohibited from making a statement s/he knows to be false, or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge, adjudicative officer, public legal officer, or candidate for appointment to judicial or legal office [MR 8.2(a)]. A lawyer may not make a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial office [MR 8.2]. A lawyer's assessment of judges and judicial candidates is relied on in evaluating such persons' professional or personal fitness for judicial or legal office. A false statement or opinion that is not candid can unfairly undermine public confidence in the administration of justice [MR 8.2, cmt. [1]]. Under MR 8.4, it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice. A judge or judicial candidate may not personally solicit or accept campaign contributions other than through a campaign committee as authorized under CJC 4.4. I is proper because the activities are not prejudicial to the administration of justice. II is proper because soliciting funds for Beta?s campaign is not prejudicial to the administration of justice. Beta may accept contributions through a campaign committee. III is proper because Alpha may publicly oppose Delta's candidacy as long as Alpha does not make any statement Alpha knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of Delta.

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37.

Attorney advertises on the local television station. In the advertisements, a professional actor says: "Do you need a lawyer? Call Attorney—her telephone number is area code 555–555–5555. Her fees might be lower than you think." Attorney approved the prerecorded advertisement and is keeping in her office files a copy of the recording of the actual transmission and a record of when each transmission was made. Is the advertisement proper?

Yes.
No, unless Attorney's fees are lower than those generally charged in the area where she practices.
No, because she used a professional actor for the television advertisement.
No, if she makes a charge for the initial consultation.

Correct Answer

A. Yes.

Explanation

"Advertising is permitted as long as the communication is not misleading and in accordance with MR 7.1 [MR 7.2]. MR 7.1 permits a lawyer to use any form of public communication about the lawyer's services that is not false or misleading. A statement is misleading if it contains a material misrepresentation of fact or law [MR 7.1]. A lawyer may advertise through written, recorded, or electronic communication, including public media [MR 7.2(a)]. All ads must include the name and office address of at least one attorney or law firm [MR 7.2(c)]. An unsubstantiated comparison of a lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with specificity to lead a reasonable person to conclude the comparison can be substantiated [MR 7.1, cmt. [3]]. Here, the ad contained Attorney?s name in compliance with MR 7.2(c). Attorney could properly advertise on television according to MR 7.2(a). The statement by the actor on fees did not compare Attorney's fees with those of other lawyers. It was also not a statement of fact, but rather opinion.
"

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38.

Deft, who has been indicted for auto theft, is represented by Attorney. Prosecutor reasonably believes that Deft committed the offense, but, because of Deft's youth, it is in the interest of justice to permit Deft to plead guilty to the lesser offense of "joy-riding" in return for an agreement by Prosecutor to recommend probation. Prosecutor has so advised Attorney, but Attorney told Prosecutor she would not plea bargain and would insist on a jury trial. Attorney informed Deft of Prosecutor's offer and advised Deft not to accept it. Deft followed Attorney's advice. Attorney is a candidate for public office, and Prosecutor suspects that Attorney is insisting on a trial of the case to secure publicity for herself. Assume for the purposes of this question ONLY that Deft was tried, convicted, and sentenced to prison for two years. Must Prosecutor report to the disciplinary authority his suspicions about Attorney's conduct of the case?

Yes, because Deft suffered a detriment from Attorney's refusal to plea bargain.
Yes, if Attorney in fact received widespread publicity as a result of the trial.
No, unless Prosecutor has knowledge that Attorney's refusal to plea bargain was due to personal motives.
No, if Attorney zealously and competently represented Deft at the trial.

Correct Answer

A. No, unless Prosecutor has knowledge that Attorney's refusal to plea bargain was due to personal motives.

Explanation

"The client has the ultimate authority to determine the purposes or objectives to be served by the representation. The objectives may include whether to enter a plea in a criminal case, after consulting with the lawyer [MR 1.2(a)]. The lawyer ordinarily has the right to determine the technical and legal tactical means by which the client?s objectives will be pursued, but has the obligation to consult with the client concerning those means [MR 1.2, cmt. [2]]. A lawyer who has knowledge of a violation of the Rules that raises a question as to any lawyer's honesty, trustworthiness, or fitness as a lawyer must inform the appropriate professional authority [MR 8.3(a)]. Here, if Attorney refused to plea bargain because of personal motives, it would raise a question as to Attorney's honesty, trustworthiness or fitness as a lawyer. As such, if Prosecutor has knowledge that Attorney's refusal to plea bargain was due to personal motives, Prosecutor must report it to the disciplinary authority under MR 8.3(a).
"

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39.

Judge is a judge of the trial court in City. Judge has served for many years as a director of a charitable organization that maintains a camp for disadvantaged children. The organization has never been involved in litigation. Judge has not received any compensation for her services. The charity has decided to sponsor a public testimonial dinner in Judge's honor. As part of the occasion, the local bar association intends to commission and present to Judge her portrait at a cost of $4,000. The money to pay for the portrait will come from a "public testimonial fund" that will be raised by the City Bar Association from contributions of lawyers who are members of the association and who practice in the courts of City. Is it proper for Judge to accept the gift of the portrait?

Yes, because the gift is incident to a public testimonial for Judge.
Yes, because Judge did not receive compensation for her services to the charitable organization.
No, because the cost of the gift exceeds $1,000.
No, because the funds for the gift are contributed by lawyers who practice in the courts of City.

Correct Answer

A. Yes, because the gift is incident to a public testimonial for Judge.

Explanation

"A judge may not accept any gifts, loans, bequests, benefits, or other things of value, except a judge may accept a gift incident to a public testimonial [CJC 3.13]. Here, the portrait is incident to a public testimonial dinner so it is okay for the Judge to accept the gift of the portrait.
"

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40.

Attorney, who had represented Testator for many years, prepared Testator's will and acted as one of the two subscribing witnesses to its execution. The will gave 10% of Testator's estate to Testator's housekeeper, 10% to Testator's son and sole heir, Son, and the residue to charity. Upon Testator's death one year later, Executor, the executor named in the will, asked Attorney to represent him in probating the will and administering the estate. At that time Executor informed Attorney that Son had notified him that he would contest the probate of the will on the grounds that Testator lacked the required mental capacity at the time the will was executed. Attorney believes that Testator was fully competent at all times and will so testify, if called as a witness. The other subscribing witness to Testator's will predeceased Testator. Is it proper for Attorney to represent Executor in the probate of the will?

Yes, because Attorney is the sole surviving witness to the execution of the will.
Yes, because Attorney's testimony will support the validity of the will.
No, because Attorney will be called to testify on a contested issue of fact.
No, because Attorney will be representing an interest adverse to Testator's heir at law.

Correct Answer

A. No, because Attorney will be called to testify on a contested issue of fact.

Explanation

MR 3.7(a) states a lawyer may not serve as an advocate at a trial in which the lawyer is likely to be a necessary witness relating to a contested issue.

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41.

Plaintiff and Defendant are next-door neighbors and bitter personal enemies. Plaintiff is suing Defendant over an alleged trespass. Each party believes, in good faith, in the correctness of his position. Plaintiff is represented by Attorney Alpha, and Defendant is represented by Attorney Beta. After Plaintiff had retained Alpha, he told Alpha "I do not want you to grant any delays or courtesies to Defendant or his lawyer. I want you to insist on every technicality." Alpha has served Beta with a demand to answer written interrogatories. Beta, because of the illness of his secretary, has asked Alpha for a five-day extension of time within which to answer them. Is Alpha subject to discipline if she grants Beta's request for a five-day extension?

Yes, because Alpha is acting contrary to her client's instructions.
Yes, unless Alpha first informs Plaintiff of the request and obtains Plaintiff's consent to grant it.
No, unless granting the extension would prejudice Plaintiff's rights.
No, because Beta was not at fault in causing the delay.

Correct Answer

A. No, unless granting the extension would prejudice Plaintiff's rights.

Explanation

"The lawyer ordinarily has the right to determine the technical and legal tactical means by which the objectives of the client will be pursued, but the lawyer has the obligation to consult with the client concerning the means [MR 1.2, cmt. [2]]. A lawyer is not bound to press for every advantage that might be realized for a client and has discretion regarding the means by which a matter should be pursued [MR 1.3, cmt. [1]]. A lawyer's duty to act with reasonable promptness does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the client [MR 1.3, cmt. [3]]. Here, Alpha may grant the extension out of professional courtesy as long as it does not prejudice Plaintiff's rights. Alpha does not need to insist on everything technically as instructed by Plaintiff because Alpha has discretion on the means to accomplish Plaintiff's objectives.
"

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42.

Judge and Attorney were formerly law partners and during their partnership acquired several parcels of real property as co-tenants. After Judge was elected to the trial court in County, she remained a co-tenant with Attorney, but left the management of the properties to Attorney. Judge's term of office will expire soon and she is opposed for reelection by two members of the bar. Attorney, who has not discussed the matter with Judge, intends to make a substantial contribution to Judge's campaign for reelection. Judge is one of fifteen judges sitting as trial court judges in County. Is Attorney subject to discipline if Attorney contributes $10,000 to Judge's reelection campaign?

Yes, if Attorney frequently represents clients in cases tried in the trial court of County.
Yes, because Judge and Attorney have not discussed the matter of a campaign contribution.
No, if the contribution is made to a campaign committee organized to support Judge's reelection.
No, because Attorney and Judge have a long-standing personal and business relationship.

Correct Answer

A. No, if the contribution is made to a campaign committee organized to support Judge's reelection.

Explanation

"A judge or judicial candidate may not personally solicit or accept campaign contributions other than through a campaign committee as authorized by CJC 4.4. As such, Attorney may contribute $10,000 to Judge's reelection campaign through a campaign committee.
"

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43.

Attorney Alpha currently represents Builder, a building contractor who is the plaintiff in a suit to recover for breach of a contract to build a house. Builder also has pending before the zoning commission a petition to rezone property Builder owns. Builder is represented by Attorney Beta in the zoning matter. Neighbor, who owns property adjoining that of Builder, has asked Alpha to represent Neighbor in opposing Builder's petition for rezoning. Neighbor knows that Alpha represents Builder in the contract action. Is it proper for Alpha to represent Neighbor in the zoning matter?

Yes, if there is no common issue of law or fact between the two matters.
Yes, because one matter is a judicial proceeding and the other is an administrative proceeding.
No, because Alpha is currently representing Builder in the contract action.
No, if there is a possibility that both matters will be appealed to the same court.

Correct Answer

A. No, because Alpha is currently representing Builder in the contract action.

Explanation

"Under MR 1.7, a lawyer must not represent a client if the representation is directly adverse to another client or materially limited by the responsibilities to another client, a former client, a third party, or by the lawyer's own interests, unless (1) the lawyer reasonably believes she will be able to provide competent and diligent representation to each affected client, (2) the representation is not prohibited by law, (3) the representation does not involve the assertion of a claim by one client against another client represented by the same lawyer, and (4) each client gives informed consent in writing. As such, Alpha may not represent Neighbor because there is a conflict of interest. The representation of Neighbor involves an assertion of a claim by Neighbor against Builder, and Alpha does not have consent from Neighbor or Builder.
"

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44.

Attorney, a sole practitioner, limits his practice to personal injury cases. Attorney regularly places an advertisement in local newspapers. The advertisement contains the following statement: "Practice limited to personal injury cases, including medical malpractice." After seeing one of Attorney's advertisements, Baker approached Attorney for representation in a medical malpractice case. After a 30-minute interview Attorney told Baker: "I'm sorry, but I am very busy and your case appears to be very complicated. I would be happy to refer you to another lawyer who regularly practices in that field and who may have more room in her schedule. You should see another lawyer promptly before the statute of limitations expires and you lose your right to bring the lawsuit." Although Attorney did not charge Baker for the interview, Baker was upset at the waste of 30 minutes of her time. Baker did not contact another lawyer until eight months later, when she learned that the statute of limitations on her claim had expired six months after her interview with Attorney. In fact, Baker had a meritorious medical malpractice claim. Is Attorney subject to civil liability?

Yes, because Attorney falsely advertised his availability for medical malpractice cases.
Yes, because Attorney did not advise Baker as to the date the statute of limitations would expire.
No, because Attorney did not violate any duty owed to Baker.
No, because Attorney offered to refer Baker to another medical malpractice lawyer.

Correct Answer

A. No, because Attorney did not violate any duty owed to Baker.

Explanation

"Lawyers in the United States are generally free to refuse service to any person for any reason. MR 1.18 details duties to prospective clients. In this case, Attorney talked to Baker, a prospective client, declined the representation, gave Baker another lawyer?s name, and urged him to contact that lawyer on a timely basis. Attorney did not owe Baker any other duty.
"

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45.

Alpha and Beta practiced law under the firm name of Alpha and Beta. When Beta died, Alpha did not change the firm name. Thereafter, Alpha entered into an arrangement with another attorney, Gamma. Gamma pays Alpha a certain sum each month for office space and use of Alpha's law library and for secretarial services, but Alpha and Gamma each has his own clients, and neither participates in the representation of the other's clients or shares in fees paid. On the entrance to the suite of offices shared by Alpha and Gamma are the words "Law Firm of Alpha, Beta, and Gamma." Is Alpha subject to discipline?

Yes, because Beta was deceased when Alpha made the arrangement with Gamma.
Yes, because Gamma is not a partner of Alpha.
No, because Alpha and Beta were partners at the time of Beta's death.
No, because Gamma is paying a share of the rent and office expenses.

Correct Answer

A. Yes, because Gamma is not a partner of Alpha.

Explanation

"MR 7.1 prohibits false or misleading communications about a lawyer?s practice. MR 7.5(d) prohibits lawyers from stating or implying that they practice in a partnership or other organization when that is not the fact. The sign at the entrance to the suite of offices represents to the public that Alpha and Gamma practice together in a single law firm and is prohibited by MR 7.5(d) and MR 7.1.
"

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46.

Attorney was employed as a lawyer by the state Environmental Control Commission (ECC) for ten years. During the last two years of her employment, Attorney spent most of her time in the preparation, trial, and appeal of a case involving the discharge by Deftco of industrial effluent into a river in the state. The judgment in the case, which is now final, contained a finding of a continuing and knowing discharge of a dangerous substance into a major stream by Deftco and assessed a penalty of $25,000. The governing statute also provides for private actions for damages by persons injured by the discharge of the effluent. Attorney recently left the employment of ECC and went into private practice. Three landowners have brought private damage actions against Deftco. They claim their truck farms were contaminated because they irrigated them with water that contained effluent from dangerous chemicals discharged by Deftco. Deftco has asked Attorney to represent it in defense of the three pending actions. Is Attorney subject to discipline if she represents Deftco in these actions?

Yes, unless the judgment in the prior case is determinative of Deftco's liability.
Yes, because Attorney had substantial responsibility in the matter while employed by ECC.
No, because Attorney has acquired special competence in the matter.
No, if all information acquired by Attorney while representing ECC is now a matter of public record.

Correct Answer

A. Yes, because Attorney had substantial responsibility in the matter while employed by ECC.

Explanation

A former government lawyer can join a firm that has clients with direct conflicts with the government agency, and about which the attorney possesses protected information [MR 1.11(a)]. The lawyer is prohibited from representing a client in connection with a matter in which the lawyer has personally and substantially participated as a public officer or employee [MR 1.11(a)]. Attorney worked for ECC for ten years, and for two years personally and substantially participated in the preparation, trial, and appeal of the Deftco case.

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47.

Attorney Alpha is skilled in trying personal injury cases. Alpha accepted the representation of Plaintiff in a personal injury case on a contingent fee basis. While preparing the case for trial, Alpha realized that the direct examination and cross-examination of the medical experts would involve medical issues with which Alpha was not familiar and, as a consequence, Alpha might not be able to represent Plaintiff competently. Without informing Plaintiff, Alpha consulted Beta, who is both a lawyer and a medical doctor and who is a recognized specialist in the care and treatment of injuries of the type sustained by Plaintiff. Alpha and Beta agreed that Beta would participate in the trial to the limited extent of conducting the direct examination and cross-examination of the medical experts and that Alpha would divide the fee in proportion to the services performed and the responsibility assumed by each. Was the arrangement between Alpha and Beta proper?

Yes, because the fee to be paid by Plaintiff was not increased by reason of Beta's association.
Yes, because the fee would be divided in proportion to the services performed and the responsibility assumed by each.
No, because Plaintiff was not advised of the association of Beta.
No, unless, upon conclusion of the matter, Alpha provides Plaintiff with a written statement setting forth the method of determining both the fee and the division of the fee with Beta.

Correct Answer

A. No, because Plaintiff was not advised of the association of Beta.

Explanation

If the lawyer is not competent to handle the representation, she may associate with competent counsel. Under MR 1.5(e), a fee can be divided between lawyers who are not in the same firm if, the: (1) division is in proportion to the services performed by each lawyer, (2) client agrees to the arrangement in writing, and (3) total fee is reasonable. Here, two lawyers, Alpha and Beta, of different law firms, arranged to divide fees, without Plaintiff?s written consent.

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48.

Attorney Alpha has been employed as an assistant prosecutor in the district attorney's office during the time that an investigation of Deft was being conducted by that office. Alpha took no part in the investigation and had no knowledge of the facts other than those disclosed in the press. Two months ago, Alpha left the district attorney's office and formed a partnership with Attorney Beta. Last week, Deft was indicted for offenses allegedly disclosed by the prior investigation. Deft asked Alpha to represent him. Alpha declined to do so, but suggested Beta. Is Beta subject to discipline if Beta represents Deft?

Yes, because Alpha was employed in the district attorney's office while the investigation of Deft was being conducted.
Yes, unless the district attorney's office is promptly notified and consents to the representation.
No, unless Alpha participates in the representation or shares in the fee.
No, because Alpha had no responsibility for or knowledge of the facts of the investigation of Deft.

Correct Answer

A. No, because Alpha had no responsibility for or knowledge of the facts of the investigation of Deft.

Explanation

A former government lawyer can join a firm that has clients with direct conflicts with the government agency, and about which the attorney possesses protected information [MR 1.11(a)]. The lawyer is prohibited from representing a client in connection with a matter in which the lawyer has personally and substantially participated as a public officer or employee [MR 1.11(a)]. Other lawyers in the former government lawyer?s new firm may handle matters the former government lawyer participated in while in public service (1) if the former government lawyer is effectively screened from participation in the matter, (2) if the former government lawyer is not apportioned any part of the fee, and (3) written notice is promptly given to the government agency to enable it to ascertain compliance with MR 1.11. As such, Alpha is not disqualified from representing Deft because Alpha took no part in the investigation and had no knowledge of the facts other than those disclosed in the press.

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49.

Attorney represents Client, the plaintiff in a civil action that was filed a year ago and is about to be set for trial. Client informed Attorney that he could be available at any time during the months of October, November, and December. In discussing possible trial dates with opposing counsel and the court clerk, Attorney was advised that a trial date on October 5 was available and that the next available trial date would be December 10. Without first consulting Client, Attorney requested the December 10 trial date because she was representing Deft, the defendant in a felony criminal trial that was set for October 20 and she wanted as much time as possible to prepare for that trial. Was it proper for Attorney to agree to the December trial date without obtaining Client's consent?

Yes, unless Client will be prejudiced by the delay.
Yes, because a criminal trial takes precedence over a civil trial.
No, because Attorney should manage her calendar so that her cases can be tried promptly.
No, unless Attorney was court-appointed counsel in the criminal case.

Correct Answer

A. Yes, unless Client will be prejudiced by the delay.

Explanation

A lawyer's duty to act with reasonable promptness does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the client [MR 1.3, cmt. [3]]. The lawyer ordinarily has the right to determine the technical and legal tactical means by which the objectives of the client representation will be pursued, but she has the obligation to consult with the client concerning those means [MR 1.2, cmt. [2]]. Here, Attorney has discretion to agree to the December trial date because the decision relates to a technical and legal tactic. Client also informed Attorney of availability in December. As such, as long as Client is not prejudiced by the delay, Attorney does not need Client?s consent.

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V. Duty Of Competence

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Alpha is a member of the bar in State First and is also licensed as a stockbroker in State Second. In his application for renewal of his stockbroker's license in State Second, Alpha knowingly filed a false financial statement. Is Alpha subject to discipline in State First for so doing?