Confidentiality Conundrums
An attorney learns from a client that the client intends to submit false documents in a civil case to mislead the court. Under Model Rule 1.6, may the attorney disclose this to the court?
A. Yes, to prevent a fraud on the court.
B. Yes, if the client consents in writing.
C. No, unless the fraud will cause imminent bodily harm.
D. No, because the duty of confidentiality prohibits disclosure.
What is A?
Model Rule 1.6(b)(2) permits disclosure to prevent the client from committing a crime or fraud that uses the attorney’s services to harm another (CRPC Rule 1.6(b)).
An attorney represents two co-plaintiffs in a lawsuit. One plaintiff wants to settle, but the other wants to proceed to trial.
Under Model Rule 1.7, what must the attorney do to continue representation?
The attorney must determine if a concurrent conflict exists (Model Rule 1.7(a)).
If the differing interests materially limit representation, the attorney must obtain informed consent from both clients in writing or withdraw if the conflict is non-consentable (Model Rule 1.7(b); CRPC Rule 1.7).
An attorney fails to file a motion due to a calendaring error, causing the client to lose a claim. Under Model Rule 1.1, is this a disciplinary violation?
A. Yes, if the error shows a lack of competence.
B. Yes, regardless of the cause, due to client harm.
C. No, if the error was unintentional.
D. No, unless the attorney has a history of errors.
What is A?
Model Rule 1.1 requires competence, including organizational diligence, and such an error may constitute a violation (CRPC Rule 1.1).
A prospective client shares confidential information
during a consultation but does not hire the attorney. Under Model Rule 1.18, what duties does the attorney owe?
The attorney must protect the prospective client’s confidential information and avoid representing another client in a substantially related matter with adverse interests unless the prospective client consents or the information is generally known (Model Rule 1.18(b)-(c); CRPC Rule 1.18).
An attorney receives a $10,000 flat fee, deemed earned upon receipt, as stated on the written fee agreement. Under Model Rule 1.15, where should it be deposited?
A. Client trust account, until services are rendered.
B. Attorney’s operating account.
C. Client trust account, with immediate withdrawal.
D. A separate escrow account.
What is B?
Model Rule 1.15(a) allows earned fees (e.g., true retainers) to be deposited in the operating account, but unearned fees must go to the trust account (CRPC Rule 1.15).
An attorney represents a corporation and learns from an employee that the CEO is hiding financial losses from shareholders. The board refuses to act.
Under Model Rule 1.13, what steps may the attorney take to address this issue?
What is...
The attorney may report UP (the board). If the board fails to act and the conduct is a violation of law likely to result in substantial injury to the organization, the attorney may report OUT if death or SBI, financial loss (ABA), only DEATH or SBI(CA)
An attorney previously represented Client A in a trademark case. Client B now seeks representation against Client A in a new trademark dispute involving different marks.
Under Model Rule 1.9, may the attorney represent Client B?
A. Yes, because the matters are unrelated.
B. Yes, if Client A consents in writing.
C. No, if the attorney has confidential information from Client A.
D. No, because the attorney owes a permanent duty of loyalty.
What is B?
Model Rule 1.9(a) requires informed consent from the former client for adverse representation in a substantially related matter or if confidential information could be used (CRPC Rule 1.9).
An attorney is convicted of a misdemeanor for tax evasion unrelated to her practice. Under Model Rule 8.4, can she be disciplined, and why?
Yes, she can be disciplined because Model Rule 8.4(b) defines criminal acts reflecting adversely on honesty or trustworthiness as professional misconduct, even if unrelated to practice (CRPC Rule 8.4).
An attorney agrees to represent a client for a flat fee but provides no written agreement.
Under CRPC Rule 1.5, is this permissible?
A. Yes, if the fee is under $1,000.
B. Yes, because flat fees need not be in writing.
C. No, unless the client waives the requirement.
D. No, because all fee agreements must be in writing.
What is A?
CRPC Rule 1.5(b) requires written fee agreements for fees over $1,000, but Model Rule 1.5 does not unless contingent (Model Rule 1.5(c)).
An attorney’s contingent fee agreement for a personal injury case is oral. Under Model Rule 1.5(c), is this permissible, and why or why not?
No, it is not permissible because Model Rule 1.5(c) requires contingent fee agreements to be in writing, signed by the client, stating the method of fee calculation (CRPC Rule 1.5(c)).
An attorney receives an email from opposing counsel containing privileged information inadvertently sent. Under Model Rule 4.4(b), what must the attorney do?
A. Return the email without reading it.
B. Notify opposing counsel and refrain from using it.
C. Use the email unless a court prohibits it.
D. Destroy the email and notify the sender.
What is B?
Model Rule 4.4(b) requires notifying the sender but does not mandate returning or destroying the document (CRPC Rule 4.4).
An attorney at Firm X represents Client A. Another attorney at Firm X wants to represent Client B, whose interests are adverse to Client A in an unrelated matter. Both clients refuse consent. Under Model Rule 1.10, what must Firm X do?
Firm X must withdraw from representing both Client A and Client B, if it has already received confidential information from both.
This rule imputes an attorney’s conflict of interest to the entire firm, prohibiting any attorney in the firm from representing a client whose interests are materially adverse to another client in the same or a substantially related matter, unless both clients give informed consent in writing.
Since both clients refuse consent, Firm X cannot represent either client to avoid violating the conflict of interest rules (CRPC Rule 1.10 similarly imputes conflicts firm-wide).
An attorney discovers a colleague has been overbilling clients. Under Model Rule 8.3, must the attorney report this?
A. Yes, if it raises a substantial question about the colleague’s fitness.
B. Yes, unless the attorney verifies the overbilling.
C. No, if the information is confidential under Model Rule 1.6.
D. No, unless the overbilling caused client harm.
What is A?
Model Rule 8.3(a) requires reporting misconduct raising a substantial question about a lawyer’s honesty, unless protected by confidentiality (CRPC Rule 8.3).
An attorney is asked to represent a client whose objectives conflict with the attorney’s personal ethics.
Under Model Rule 1.2(b), may the attorney refuse, and why?
Yes, the attorney may refuse because Model Rule 1.2(b) states that representation does not endorse the client’s views, allowing refusal for personal reasons (CRPC Rule 8.4.1).
An attorney charges a contingent fee for a criminal defense case. Under Model Rule 1.5(d), is this permissible?
A. Yes, if the client consents in writing.
B. Yes, if the fee is reasonable.
C. No, because contingent fees are prohibited in criminal cases.
D. No, unless the court approves.
What is C?
Model Rule 1.5(d)(2) prohibits contingent fees in criminal cases (CRPC Rule 1.5(d)).
An attorney’s former client, now deceased, confessed to a past fraud that affected a third party. A regulator asks the attorney to disclose this. Under Model Rule 1.6, may the attorney disclose the confession, and why or why not?
What is no?
The attorney may not disclose the confession because the duty of confidentiality continues after the client’s death, and no Model Rule 1.6(b) exception (e.g., preventing imminent harm or crime) applies since the fraud is in the past (CRPC Rule 1.6).
An attorney represents a client in a real estate deal and is offered a stake in the property as a gift. Under Model Rule 1.8, may the attorney accept?
A. Yes, if the gift is unsolicited and nominal.
B. Yes, if the client consents after consultation.
C. No, unless the client is advised to seek independent counsel.
D. No, because gifts create a per se conflict.
What is C?
Model Rule 1.8(c) requires the client to be advised in writing to seek independent counsel and give informed consent for substantial gifts (CRPC Rule 1.8.3).
An attorney with a substance abuse problem misses a court deadline, harming the client. Under Model Rule 1.16(a)(2), what must the attorney do?
The attorney must withdraw from representation if the substance abuse materially impairs their ability to represent the client (Model Rule 1.16(a)(2)).
An attorney limits representation to drafting a contract, excluding litigation. The client consents orally. Under Model Rule 1.2(c), is this valid?
A. Yes, if the limitation is reasonable.
B. Yes, if the consent is in writing.
C. No, because limited scope agreements require written consent.
D. No, unless the client is sophisticated.
What is A?
Model Rule 1.2(c) allows limited scope representation with informed consent, which need not be in writing unless required by jurisdiction (CRPC Rule 1.2).
An attorney mismanages a client trust account, causing a shortfall due to poor record-keeping. Under Model Rule 1.15, what disciplinary consequences might the attorney face?
The attorney may face discipline for violating Model Rule 1.15(a), which requires safeguarding client funds and maintaining complete records. A shortfall, even unintentional, is a violation and may lead to sanctions (CRPC Rule 1.15).
An attorney consults with a prospective client who discloses details of a planned merger but does not hire the attorney. The attorney is later retained by a competitor in a substantially related antitrust case. The attorney’s firm screens her. Under Model Rule 1.18, may the firm represent the competitor?
A. Yes, if the prospective client is notified and the attorney is screened.
B. Yes, if the prospective client consents in writing.
C. No, because the attorney received confidential information.
D. No, unless the matters are unrelated.
What is A?
Model Rule 1.18(d)(2) allows representation if the attorney is screened, does not share confidential information, and the prospective client is notified (CRPC Rule 1.18).
An attorney at Firm A represented Client X in a trade secrets case. She joins Firm B, which represents Client Y against Client X in a substantially related case. The attorney has confidential information. Under Model Rule 1.10(a)(2), may Firm B continue representing Client Y?
A. Yes, if Client X consents.
B. Yes, if the attorney is screened and Client X is notified.
C. No, because the conflict is imputed to Firm B.
D. No, unless the matters are unrelated.
What is B?
Model Rule 1.10(a)(2) allows representation if the attorney is screened, does not share confidential information, and Client X is notified (CRPC Rule 1.10(a)(2)).
An attorney licensed in State A practices in State B without authorization, violating State B’s rules. No client harm occurs. Under Model Rule 8.5, where can the attorney be disciplined?
A. State A only, where licensed.
B. State B only, where the conduct occurred.
C. Both State A and State B.
D. Neither, because no harm occurred.
What is C?
Model Rule 8.5(a) allows discipline in any jurisdiction where the attorney is licensed or where the misconduct occurs, regardless of harm (CRPC Rule 8.5).
An attorney represents a client with diminished capacity who insists on a risky investment scheme. Under Model Rule 1.14, what should the attorney do to protect the client?
The attorney should maintain a normal attorney-client relationship as far as possible but may take protective action, such as consulting family or seeking a guardian, if the client risks substantial harm due to diminished capacity (Model Rule 1.14(b); CRPC Rule 1.8.3).
An attorney withdraws from representation, claiming $5,000 in disputed fees from a client trust account.
Under Model Rule 1.15(e), what should the attorney have done with the disputed funds, and why?
The attorney should have kept the disputed $5,000 in the client trust account until the dispute is resolved, as Model Rule 1.15(e) requires disputed funds to remain in the trust account while promptly distributing undisputed amounts (CRPC Rule 1.15).