Question 1



Exam 2

Answer to Question 1

(D)              A lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation.  (ABA Rule 1.6(a)).  Since the Investigator’s report was obtained as part of the representation of Client, Lawyer properly withheld the information from Plaintiff’s attorney.  (D) is therefore the best answer.  (A) is incorrect under the stated rule.  (B) is incorrect because it is not a fraud upon the court or an opponent to fail to disclose voluntary information damaging to a client absent a legal duty to do so.  (C) is incorrect because Client’s belief would be irrelevant to the stated rule.

Answer to Question 2

(A)       Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.  (ABA Rule 7.5(d) and Comment thereto).  Therefore, (A) is the correct answer.  “Law Firm of Xact, Young & Zevon” implies that they are partners when, in fact, this is not the case.  Xact and Zevon are merely sharing office space.  Thus, there is no partnership agreement.  (B) is incorrect because the firm name included Zevon, someone who is not a partner.  (C) is incorrect because the fact that Xact and Young were partners in the past does not allow Xact and Zevon to use a firm name which implies that they are partners.  (D) is incorrect because sharing office space, the law library, and secretarial services does not entitle Xact and Zevon to represent themselves as partners.

Answer to Question 3

(C)       Prior to the conclusion of a representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the presentation.  (ABA Rule 1.8(d)).  Therefore, (C) is the correct.  Since, at the time of the agreement, Attorney still represented Client, he would be subject to discipline if he agreed to the arrangement proposed by Defendant.  (A) is incorrect because seeking advice from independent counsel would not make the agreement permissible.  (B) is incorrect, since Rule 1.8(d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer’s fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraph (j).  (D) is incorrect because the amount of money Attorney may make is irrelevant.

Answer to Question 4

(A)       A lawyer should abide by a client’s decisions concerning the objectives of representation, and shall consult with the client as to the means by which they are to be pursued.  A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter.  (ABA Rule 1.2(a), and ABA Rule2.1).  (A) is the correct answer because the decision whether to accept or reject a settlement is considered to be an objective of the representation rather than a legal strategy.  Thus, Attorney should abide by Agency’s decision.  (B) is not the best answer because an attorney need not withdraw from a case if the client fails to follow Attorney’s advice, unless the client’s objectives are so at odds with the attorney’s that he could not adequately represent the client.  (C) is incorrect because Attorney does not need to withdraw from representation even though Attorney does not believe in the representation.  (D) is incorrect because Attorney would need to consult with Temporary Employment Agency prior to accepting a settlement offer.

Answer to Question 5

(B)       A judge shall disqualify himself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter.  (CJC Canon 3E(1)(b)).  Therefore, (B) is the best answer.  (A) is incorrect because disclosure alone does not prevent the requirement of disqualification.  Judge must also obtain the consent of each party before it is proper for Judge to continue on the bench.  (C) is inaccurate.  Even though Judge may no longer have a financial interest, he still has to abide by the rule stated above.  (D) is incorrect because the degree of participation in a legal matter while a judge was in private practice is irrelevant to the issue of disqualification.

Answer to Question 6

(A)       A lawyer shall not influence a judge, juror, prospective juror or other official by means prohibited by law or communicate ex parte with such a person except as permitted by law. (ABA Rule 3.5(a) and (b)).  Deputy City Attorney’s communication with the juror would be improper if it violated applicable law.  Therefore, (A) is the best answer.  (B) is incorrect because a lawyer may have an ex parte communication with a juror as long as the communication does not seek to embarrass, harass, or improperly influence the juror.  (C) is incorrect, because it is irrelevant if Attorney’s statement could be construed as protecting public safety.  The focus is on whether the attorney’s communication violated applicable law.  (D) is incorrect because Attorney’s statement could influence a juror as to future jury service.

Answer to Question 7

(D)       A lawyer shall not practice law or assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.  This does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.  (ABA Rule 5.5 (b) and Comment thereto).  (D) is therefore the correct answer.  (A) is incorrect because as long as Attorney supervises the delegated work and assumes responsibility for their work, he can hire secretaries to perform such tasks.  (B) is incorrect because it is irrelevant whether the secretaries are certified law students for the reasons stated in ABA Rule 5.5(b).  (C) is incorrect because the rules of professional responsibility dictate that a secretary can perform such tasks so long as Attorney supervises the delegated work and retains responsibility for their work.

Answer to Question 8

(A)       A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation.  (ABA Rule 1.7(a)).  A possible conflict does not itself preclude the representation.  The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.  (Comment 4 to ABA Rule 1.7).  Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly  unrelated.  (Comment 3 to ABA Rule 1.7).  Therefore, (A) is the correct answer because Attorney already represents Paul in the medical malpractice lawsuit.  (B) is incorrect because both parties must consent for the representation to be proper.  (C) is incorrect.  Even though the matters may be unrelated, it would not make the representation of both parties proper.  (D) is incorrect for the reasons stated above.

Answer to Question 9

(D)       A lawyer may not reveal information relating to representation of a client unless the client consents after consultation. (ABA Rule 1.6). A Lawyer may reveal confidential information to prevent a future crime, but not to rectify a crime already committed.  Therefore, (D) is the best answer.  (A) is incorrect because there is no indication that Client is perpetrating a fraud on the court.  (B) is incorrect since the duty of confidentiality survives the end of the lawyer/client relationship.  (C) is incorrect since the facts do not indicate that Client intended to commit a future crime.

Answer to Question 10

(A)       A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except a judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.  (CJC Canon 3B(7)(b).).  (A) is correct because Judge Jay consulted with another judge, Judge Kay.  (B) is incorrect because a judge may not consult with a non-judge expert on purely legal matters without giving the parties notice and an opportunity to respond.  (C) is incorrect because a judge may consult with other judges. (D) is incorrect because a judge does not need to give notice to the parties of a consultation with another judge.

Answer to Question 11

(B)       A lawyer having knowledge that another lawyer has committed a violation of the Rule of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.  (ABA Rule 8.3(a)).  Therefore, (B) is the correct answer because Partner would be subject to discipline for failing to report Attorney’s conduct if he knew that the MRI report was a piece of evidence in a case.  (A) is not the best answer because it is not enough that Partner observed the destruction of evidence.  Partner would have to know that Attorney was actually destroying a piece of evidence.  (C) is incorrect because the Fifth Amendment would not be applicable here since this is not testimonial evidence. (D) is incorrect because Partner would still have to report Attorney’s conduct to the appropriate professional authority even though Partner himself is an authority figure.

Answer to Question 12

(D)       Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.  (ABA Rule 1.11(a)).  Thus, (D) is the best answer because Attorney Alpha convicted Squash in the prior criminal proceeding.  Such representation would constitute personal and substantial representation that would require consent after consultation.  (A) is incorrect because it would still be necessary for Attorney to obtain consent after consultation even if the representation of Guardian would not be considered adverse to the City.  (B) is incorrect because the termination of the prior case is irrelevant.  Attorney Alpha is still required to obtain consent after consultation.  (C) is incorrect because obtaining Squash’s consent has no impact on this situation.  Attorney does not need Squash’s consent; rather the City’s consent is needed since Attorney worked for the City.

Answer to Question 13

(C)       A lawyer shall not, in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.  (ABA Rule 3.4(e).  Therefore, (C) is the best answer since Attorney expressed his opinion that Manager was a liar.  (A) is not the best answer because, whether or not Attorney could prove that Manager was lying, he could not state his opinion as to Manager’s credibility.  (B) is incorrect because Attorney still violated the stated rule for expressing his opinion.  (D) is incorrect because Attorney’s raised voice does not violate the rules of professional responsibility.

Answer to Question 14

(B)       A lawyer shall not knowingly offer evidence that the lawyer knows to be false.  (ABA Rule 3.3(4)).  Therefore (B) is the correct answer since Attorney discovered the alteration during a meeting prior to trial.  (A) is incorrect because the falsification need not be significant or material.  It is the fact that Doctor falsified his records and Attorney knew of such falsification that precludes admission into evidence.  (C) is incorrect because it does not take into consideration the violation of the stated rule.  (D) is not the best answer because, while Attorney has a duty to zealously advocate on behalf of his client, he must do so in accordance with the rules of professional responsibility.

Answer to Question 15

(D)       A lawyer shall not represent a client or, when representation has commenced, shall withdraw from the representation of a client if a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent.  (ABA Rule 1.16(b)(3)).  Therefore, (D) is the correct answer.  (A) is incorrect because an attorney does not need to accept every case that walks through the door.  (B) is not the best answer because it does not include the option of withdrawing from representation should Wife insist on pursing a repugnant objective.  (C) is incorrect because Attorney may withdraw from the case for the reason stated above without being subject to discipline.

Answer to Question 16

(B)       A lawyer shall not engage in an ex parte communication with a judge concerning a pending case.  (ABA Rule 3.5).  Therefore, (B) is the best answer.  Attorney may discuss any subject except the merit’s of Client’s case since Client’s case is pending before Judge.  (A) is incorrect because it is too broad.  Attorney and Judge cannot discuss any subject because that would include the pending case.  (C) is not as good an answer as (B) because Attorney and Judge would not be limited to discussing guns only.  (D) is incorrect because Attorney may speak with Judge so long as the conversation does not involve the merits of Client’s case.

Answer to Question 17

(B)       Every written or recorded communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter, and with whom the lawyer has no family or prior professional relationship, shall include the words “Advertising Material” on the outside envelope and at the beginning and ending of any recorded communication.  (ABA Rule 7.3(c)).  Therefore, (B) is the correct answer because Attorney would have to include the words “Advertising Material.” On the outside of each envelope.  (A) is incorrect because Attorney is permitted to solicit her business so long as she does not violate the stated rule.  (C) is not the best answer because it does not include the requirement of “Advertising Material” on the outside of the envelope.  (D) is incorrect for the reasons in the stated rule.

Answer to Question 18

(A)              A lawyer shall not give anything of value to a person for recommending the lawyer’s services.  (ABA Rule 7.2(c)).  Therefore, I would subject Attorney to discipline.  However, neither II nor III would subject Attorney to discipline since neither would violate the rules against solicitation.  It is not improper for Attorney to send business cards to Client or accept referrals from Client unless Attorney directed Client to distribute the cards to prospective clients.  Thus, (A) is the correct answer.

Answer to Question 19

(D)       A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation.  (ABA Rule 1.7(a)).  A lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them.  (Comment to ABA Rule 1.7.).  Therefore (D) is the correct answer because both parties consented after full disclosure and their interests are aligned.  (A) is incorrect for the reasons stated above.  (B) is irrelevant to the rule regarding conflict of interest.  (C) is incorrect because it fails to make reference to the key concern of client consent.

Answer to Question 20

(D)       A judge is permitted to accept a gift incident to a public testimonial.  (CJC Canon 4D(5)(a)).  Therefore, (D) is the best answer.  (A) is incorrect because the source of the gift is immaterial as long as the gift is incident to a public testimonial.  (B) is incorrect because the value of the gift is also irrelevant.  (C) is not the best answer because Judge may accept the gift at the time it was presented to her.

Answer to Question 21

(A)       A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.  (ABA Rule 1.5(d)(2)).  Therefore, (A) is the best answer because Attorney has entered into a contingent fee arrangement since the payment of the $2,000 was contingent on the outcome.  (B) is not the best answer because, even if the fee were reasonable, payment of the additional $2,000 is prohibited by the stated rule.  (C) is incorrect because contingent fee agreements are restricted by the rules of professional responsibility.  (D) is incorrect because the arrangement is still considered a contingent fee regardless of whether Defendant has the opportunity to seek independent advice.

Answer to Question 22

(D)       In dealing, on behalf of a client, with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.  When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.  (ABA Rule 4.3).  Therefore, (D) is the best answer because the answer contains the language of the stated rule.  (A) is not the best answer since Attorney may speak with an unrepresented witness so long as Attorney does not state or imply that the lawyer is disinterested.  (B) is irrelevant.  The rules of professional responsibility still apply to Attorney’s conduct.  (C) is not the best answer because Attorney may state her opinion.

Answer to Question 23

(B)       A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.  (ABA Rule 1.16(a)(2)).  The client is entitled to a refund of any advance payment of fee that has not been earned.  (ABA Rule 1.16(d)).  Therefore, (B) is the best answer since Attorney earned $500, which represents 5 hours at $100 an hour.  (A) is incorrect for the reasons in the stated rule.  (C) is incorrect because Client is entitled to a refund of the fee not yet earned.  Even though the prepayment was termed a retainer, it was specifically designated as refundable.  (D) is not the best answer since Attorney’s mental abilities may not be at full capacity for the next couple of years and Client’s needs are current.

Answer to Question 24

(B)       A lawyer shall act with reasonable diligence and promptness in representing a client.  (ABA Rule 1.3).  Therefore, (B) is the best answer because Attorney may not have been diligent in waiting two years to draft the complaint on behalf of Client.  (A) is incorrect because the Statute of Limitations need not run before Attorney violates her duty to act with reasonable diligence in representing a client.  (C) is incorrect because a client need not suffer harm as a result of Attorney’s delay.  Attorney would still be in violation of the stated rule.  (D) is incorrect because time does not need to be of the essence for the stated rule to apply.

Answer to Question 25

(A)       A lawyer who has formerly represented a client in a matter shall 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 after consultation.  (ABA Rule 1.9 and Comment thereto).  Therefore, (A) is the correct answer because Attorney did not consult Pa and obtain Pa’s consent prior to accepting the representation of Ma.  (B) is incorrect because Attorney could properly represent Ma in the custody suit, but only if Attorney obtained consent after consultation with Pa.  (C) is incorrect because Attorney’s loyalty to his former client, Pa, did not end with the conclusion of the paternity suit.  (D) is incorrect because Pa would still need to consent after consultation.  It is irrelevant how Ma would compensate Attorney.

Answer to Question 26

(B)       A judge shall disqualify himself in a proceeding in which the judge’s impartiality might reasonably be questioned including, but not limited to, instances where the judge has a personal bias or prejudice concerning a party or a party’s lawyer.  (CJC Canon 3E(1)(a)).  Therefore, (B) is the correct answer.  (A) is not the best answer because the rule is addressed to the reasonable likelihood of lessened impartiality, not to Judge’s subjective feelings.  (C) is incorrect for the reasons stated above.  (D) is not the best answer because Judge should not wait for Attorney to bring a motion.  Rather, Judge must disqualify himself without Attorney’s motion.

Answer to Question 27

(D)       A lawyer having knowledge that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer must inform the professional authority.  (ABA Rule 8.3(a)).   Therefore, (D) is the correct answer.  (A) is incorrect because the stated rule does not make such a distinction.   (B) would have no bearing on a potential ethical violation.  (C) is irrelevant.  Lawyer would owe a duty to report Attorney’s actions regardless of whether Attorney remained in office.

Answer to Question 28

(A)              ABA Rule 3.3(a)(3) states: “A lawyer shall not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”  Therefore, (A) is the correct answer.  (B), (C), and (D) are all accurate statements of law, but they do not excuse a violation of the stated rule.

Answer to Question 29

(A)       A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct.  (ABA Rules 5.1(b), 5.3(b)).  Additionally, a lawyer shall be responsible for another lawyer’s violation of the rules of professional conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.  (ABA Rule 5.1(c), 5.3(c)).  Under these rules, (A) is the correct answer.  Here, Julie did not have the knowledge and skill reasonably necessary for competent representation.  Senior knew that Julie was not competent in writing lease agreements and failed to adequately supervise her or otherwise take measures to avoid the violation.  Thus, Senior is responsible for Julie’s conduct.  (B) is incorrect because, even if Senior obtained Client’s consent, he would still be responsible for supervising Julie’s work in order to provide competent counsel.  (C) is incorrect because Julie’s prior experience does not render her competent to handle the present task (e.g., to draft lease agreements) or excuse Senior from the need to supervise her.  (D) is incorrect because, even though Julie had been recently admitted to the Bar, admission to the Bar does not mean that she is automatically competent to handle a case according to the rules of professional responsibility.

Answer to Question 30

(D)       A lawyer must act with reasonable diligence and promptness in representing a client. (ABA Rule 1.3).  Therefore, (D) is the best answer.  (A) is incorrect because the fact that Lawyer filed the suit before the running of the statute of limitations would not necessarily mean that Lawyer acted diligently.  (B) is incorrect because Lawyer’s vacation plans do not take precedent over his duty owed to Client.  (C) is incorrect because Client owes no duty to contact Lawyer.

Answer to Question 31

(D)       A lawyer shall not make a statement that 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 or legal office.  (ABA Rule 8.2(a))   Therefore, (D) is the best answer.  (A) is incorrect because Attorney Alpha is bound by the rules of professional responsibility which prohibits such statements.  (B) is not the best answer because there is no indication that Alpha knew or should have known the statement was true.  (C) is incorrect because Attorney Alpha could make such a statement if he knew or reasonably believed the statement to be true.

Answer to Question 32

(A)              The duty of confidentiality may not be violated in order to redress a past fraud upon a tribunal committed without a lawyer’s knowledge by the lawyer’s client. (ABA Rule 1.6(a), Rule 3.3(a) and (b)).  (A) is therefore correct.  (B) is incorrect because the duty of confidentiality continues after the representation has terminated.  Thus, it would make no difference whether Lawyer was still representing Husband.  (C) is incorrect because the statement by Client is related to a prior representation and Lawyer is still bound by the duty of confidentiality.   (D) is incorrect because the facts do not indicate that Lawyer was aware of Husband’s fraud until after the proceeding had concluded.

Answer to Question 33

(D)              A prosecutor must refrain form prosecuting a charge the prosecutor knows is not supported by probable cause. (ABA Rule 3.8(a)).  Since Attorney knew that Suspect was not involved in the assault, (D) is the correct answer.  (A) is incorrect because Suspect’s confession does not excuse a violation of the stated rule.  (B) is incorrect, although it is true. The answer does not account for a prosecutor’s responsibility as a lawyer to obey professional conduct.  (C) is incorrect because a lawyer is disciplined for committing ethical violations.

Answer to Question 34

(A)       Each member of a partnership is a fiduciary with respect to all other partners and has a duty of loyalty to the others.  Therefore, (A) is the best answer because Aaron breached his fiduciary duty owed to Ben when he pursued the business of the partnership.  (B) is incorrect because Aaron does not actually have to take work from Ben to be in violation of his fiduciary duty.  (C) and (D) are both incorrect because neither would justify Aaron’s action of pursuing partnership business and therefore breaching his fiduciary duty.

Answer to Question 35

(C)       A judge should not testify voluntarily as a character witness. (CJC Canon 2B).  Since Judge was subpoenaed to appear, the testimony was not voluntary.  Therefore, (C) is the best answer.  (A) is incorrect under the stated canon.  (B) is incorrect because Judge could be subject to discipline even if he did not reveal confidential information.  (D) is incorrect because the prohibition on voluntary testimony would apply regardless of the jurisdiction.

Answer to Question 36

(C)       A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it is likely to create an unjustified expectation about the results the lawyer can achieve.  (ABA Rule 7.1(b)).  Therefore, (C) is the best answer because the commercial may create the unjustified expectation that Attorney Allison wins every adoption case.  It also may imply that Attorney Allison could obtain a successful result regardless of the merits of the case.  (A) is incorrect because the public’s right to know does not justify misleading them about Attorney Allison’s services.  (B) is not the best answer because it does not take into consideration that the commercial may contain an unjustified expectation that Attorney Allison obtains favorable results in every case.  (D) is incorrect because the rules of professional responsibility permits attorneys to publicize in this manner as long as the communication is not false or misleading.

Answer to Question 37

(C)       A lawyer shall not permit a person who pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.  (ABA Rule 5.4(c)).  Therefore, C is the best answer because Lawyer allowed Benefactor to control his legal judgment.  (A) is incorrect because the ultimate result of the representation is irrelevant to a potential violation of the stated rule.  (B) is incorrect because Lawyer violated the stated rule as soon as he allowed Benefactor to control his professional judgment.  The fact that his actions were otherwise competent will not excuse the ethical violation.  (D) is incorrect because Client has the final decision as to whether he is to testify.

Answer to Question 38

(D)              ABA Rule 3.6 forbids a lawyer from making extra-judicial statements that a reasonable lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.  One situation in which a statement is likely to have such an effect is when it refers to a criminal matter and the statement relates to the character, credibility or reputation of a witness or the identity of a witness.  Therefore, (D) is the best answer.  (A) is incorrect because the truth of the statement does not prevent a violation of the stated rule.  (B) is incorrect since the rule does not apply exclusively to matters where the trial has begun.  (C) is incorrect because the stated rule does not require the issuance of such an order for a violation to occur.

Answer to Question 39

(D)       A lawyer who has formerly represented a client in a matter shall 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 after consultation.  (ABA Rule 1.9 and Comment 1 thereto).  Therefore, (D) is the correct answer because if Kid consents after consultation, Attorney may represent Cousin.  (A) is incorrect because Kid would still need to consent after consultation regardless of the form of payment.  (B) is incorrect because Kid may still consent even though Attorney had acted as Kid’s Guardian Ad Litem.  (C) is incorrect because Attorney’s loyalty to Kid did not conclude when Attorney’s appointment as Guardian Ad Litem concluded.

Answer to Question 40

(C)       A lawyer may acquire a lien granted by law to secure the lawyer’s fee and expenses.  (ABA Rule 1.8(j)(1)).  Therefore, (C) is correct.  (A) is incorrect because the house is the only property of the Defendant which the government did not seize and is therefore not subject matter of the litigation.  (B) is incorrect because there is no general prohibition against entering into a business arrangement with a criminal defendant.  (D) is incorrect because the result of the proceeding is irrelevant under the stated rule.

Answer to Question 41

(C)       If within 21 days after being served with a motion for sanctions, the party charged with making a nonmeritorious claim withdraws the claim or otherwise corrects the situation, the motion is not considered filed with the court.  (FRCP 11).  Therefore, (C) is the correct answer because Attorney amended the complaint to eliminate the improper claim 14 days after the complaint was filed.  (A) is incorrect because the rule requiring revelation of adverse authority applies only if the opposing party fails to disclose the legal authority.  Here, Lawyer revealed the decision of the State Red Supreme Court, so Attorney was not obligated to do so.  (B) is incorrect because the fact that Attorney was unaware of the recent decision might subject him to civil liability, but would not subject him to litigation sanctions.  (D) is incorrect because the fact that Attorney may have been acting in the best interest of his client would not shield him from litigation sanctions.

Answer to Question 42

(B)       A lawyer may assist a client in a good faith attempt to test the validity of a law. (ABA Rule 1.2(d)).  (A) is not as good an answer as (B) because (B) speaks more precisely to the ethical principle involved.   (C) is incorrect  because the issue is whether a lawyer can assist the client in challenging the validity of a law.  The fact that the client loses the challenge does not effect whether there is an ethical violation.  (D) is incorrect because, although advising a client to break a law will occasionally be a violation of the rules of professional conduct, this answer ignores the stated rule which allows for the good faith test of a law’s validity.

Answer to Question 43

(C)       A prosecutor in a criminal case shall make timely disclosure to the defense of all evidence known to the prosecutor that supports innocence of the defendant or mitigates the punishment that the defendant might receive.  (ABA 3.8(d)).  Therefore, (C) is the best answer because the testimony of Patron would support Suspect’s innocence.  (A) is incorrect because the fact that Suspect was ultimately acquitted does not mitigate Lawyer’s ethical violation.  (B) is incorrect because the stated rule controls over the general duty of confidentiality and other special responsibilities of a prosecutor.  (D) is incorrect because a Constitutional violation would not necessarily create a violation of the rules of professional conduct.

Answer to Question 44

(A)              A lawyer must not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.  (ABA Rule 5.4(b)).  Therefore, (A) would be the correct answer.  (B) is incorrect because there is no blanket prohibition against forming a partnership with a non-lawyer.  It is only a violation to form such a partnership when a portion of the activities of the partnership involves the practice of law.  (C) is incorrect because it is irrelevant to the stated rule whether or not Lawyer was admitted to practice in each jurisdiction visited by the carnival.  (D) is incorrect because the rules do not require any unauthorized practice of law within a prohibited partnership to create an ethical violation.

Answer to Question 45

(C)       A division of fee between lawyers who are not members of the same firm may be made only if the division is in proportion to the services performed by each lawyer, or by written agreement with the client, each lawyer assumes joint responsibility for the representation.  (ABA Rule 1.5(e)).  (C) is therefore the best answer because Lawyer’s share would be disproportionate to the services Lawyer would be performing as compared to Attorney, and there are no facts to indicate the Client consented in writing to a different division.  (A) is incorrect because client orally consented, which is not sufficient under the stated rule.  (B) is incorrect because the fact that Lawyer would be getting less than he was originally entitled to receive would not be itself satisfy the proportionality rule.  (D) is incorrect because the stated rule allows for fee sharing among attorneys not within the same firm.

Answer to Question 46

(C)       A lawyer having knowledge that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer must report that fact to the appropriate authority. (ABA Rule 8.3(a)).  However, that rule does not require disclosure of information otherwise protected by the duty of confidentiality. (ABA Rule 8.3 (c)).  Therefore, (C) is the best answer.  (A) is incorrect because it ignores the requirements of the duty of confidentiality.  (B) is incorrect because the rules do not require a lawyer to take remedial action to correct a fraud perpetrated on a tribunal in a completed proceeding.  (D) is incorrect because the facts do not indicate that Lawyer was aware of Attorney’s fraud when the motion was filed.

Answer to Question 47

(A)              A lawyer shall not accept compensation for representing a client from one other than the client unless the confidentiality of the information relating to the representation of the client is protected. (ABA Rule 1.8(f)(3)).  Therefore, (A) is the best answer.  (B) is incorrect. The stated rule gives several exceptions to the prohibition on accepting compensation for representing a client from one other than the client.  (C) is incorrect because the revelation to Client’s mother would not have the effect of preventing a fraud on any court.  (D) is incorrect because it ignores the stated rule.

Answer to Question 48

(B)       A lawyer in possession of client funds must place them in an identified account separate from the lawyer’s funds, and must promptly notify the client of the receipt of funds and deliver any funds to which the client is entitled.  (ABA Rule 1.15).  Attorney failed to keep the funds received separate when he deposited the checks into his office checking account, and failed to notify Client when he received the initial payment of $100,000.  Therefore, (B) is the best answer.  (A) is a correct statement, but is not as complete an answer as (B).  (C) is incorrect because there are no facts indicating that Client was not entitled to any funds until the settlement was paid in full.  In addition, even if Client was not so entitled to receive funds, Attorney would still be subject to discipline for the reasons stated above.  (D) is incorrect because the fact that Client may not have demanded payment does not excuse Attorney’s ethical violations.

Answer to Question 49

(B)       A lawyer shall abide by a client’s decisions concerning the objectives of representation, and shall consult with the client as to the means by which they are to be pursued.  A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter.  (ABA Rule 1.2(a)).  Therefore, (B) is the best answer.  (A) is incorrect because Beta would be subject to discipline regardless of whether the $5,000 was a reasonable settlement amount.  (C) is incorrect because Attorney did not consult with Physician prior to accepting the settlement and therefore was not able to abide by Physician’s decision to settle or to go to trial.  The fact that the settlement might be in Physician’s best interest is irrelevant.  (D) is not the best answer because it does not take into consideration the requirement that Physician is the ultimate decision-maker.  Simply informing the client is not enough.

Answer to Question 50

(C)       Solicitation is direct person-to-person communication for pecuniary gain.  Since Attorney is not conducting the seminars for the purpose of pecuniary gain, she is not engaging in solicitation.  (ABA Rule 7.3).  Therefore, (C) is the best answer.  (A) is incorrect under the stated rule.  (B) is incorrect since, under the stated rule, Attorney’s activities were not solicitation.  (D) is not the best answer because if the seminars were a prohibited solicitation, the fact that Attorney referred individuals to other counsel would not mitigate the violation of the rules.

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