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1. An attorney was representing a nonprofit organization in merger negotiations with another nonprofit entity. During a review of the client organization’s financial records, the attorney discovered that the organization had engaged in activities that jeopardized its nonprofit status. The attorney reasonably concluded that the organization’s failure to report these activities to the other nonprofit entity would constitute a fraud. The attorney had not represented the organization at the time of the activities and had not made any false representations to the other nonprofit entity during the negotiations. The attorney met with the organization’s board of directors and informed it that he would withdraw from representing the organization in the merger negotiations unless it disclosed to the other nonprofit entity the activities that jeopardized the organization’s nonprofit status. The board refused to disclose the activities and insisted that the attorney continue to represent the organization. The attorney declined and promptly withdrew from the representation without making any disclosures to the other nonprofit entity or to the state tax authorities. Is the attorney subject to discipline for his conduct in this representation?
(A) Yes, because the attorney did not inform the other nonprofit entity that the organization had failed to report the activities that jeopardized the organization’s nonprofit status.
(B) Yes, because the attorney withdrew from representing the organization in the merger negotiations without the board’s permission.
(C) No, because the attorney withdrew from the representation after informing the board of directors about the need to disclose the activities to the other nonprofit entity.
(D) No, because the attorney was permitted to withdraw regardless of whether he informed the board of directors of the need to disclose the activities to the other nonprofit entity.
2. A state prosecutor was assigned to a murder case in which the defendant had confessed to committing the crime. In the same confession, the defendant had also confessed to committing many other crimes over many years, including the murder of a young woman in another jurisdiction. In investigating the defendant’s confession, which the prosecutor knew to be credible, the prosecutor discovered that
another individual had been convicted and sentenced to prison for the murder of the young woman. Based on the defendant’s confession, for which there was corroboration, the prosecutor knew that it was reasonably likely that the individual convicted of murdering the young woman was innocent. The prosecutor did not tell anyone about the defendant’s confession to the murder of the young woman. Was the prosecutor’s conduct proper?
(A) No, because the prosecutor failed to promptly disclose the information regarding the defendant’s confession to a court or the chief prosecutor in the other jurisdiction.
(B) No, because the prosecutor failed to investigate to determine whether the individual convicted of murdering the young woman was innocent.
(C) Yes, because the defendant’s confession was information relating to the prosecutor’s representation of the state.
(D) Yes, because the prosecution of the other individual for murdering the young woman was final.
3. An attorney represented a company that produces chemical products. Some of the waste products of the company’s manufacturing processes are highly toxic and are reasonably certain to cause substantial bodily harm if disposed of improperly. The president of the company recently informed the attorney that a new employee had mistakenly disposed of the waste products in the ground behind the company plant, an area that is part of the source of the city’s water supply. The attorney advised the president that the company could be civilly and criminally liable for negligence in lawsuits brought by any persons harmed by the waste products. The attorney advised the president to immediately report the problem to city authorities. Fearful of adverse publicity, the president declined to do so. The attorney
further advised the president that she believed the president’s decision was immoral. The president continued to decline to report the matter. The attorney then informed the president that she was withdrawing from the representation and would inform the authorities herself. Immediately after withdrawing, the attorney reported the company’s conduct to the authorities. Is the attorney subject to discipline?
(A) Yes, because the attorney received the information in confidence and was not permitted to reveal the information without the company’s consent.
(B) Yes, because the company’s conduct was not intentional.
(C) No, because the attorney reasonably believed that the president was pursuing an imprudent and immoral course of conduct.
(D) No, because the attorney reasonably believed that the company’s disposal of the waste products was reasonably certain to cause substantial bodily harm.
4. A state trial court judge was assigned an action that sought to invalidate a testamentary trust as violating the rule against perpetuities. The judge had no experience in estate matters and did not find the briefs submitted by the parties to be helpful. Without prior notice to the parties, the judge consulted another trial judge with extensive experience in estate planning concerning the essential aspects of the rule. The judge was careful during the consultation to avoid identifying the parties or receiving any factual information that was not part of the record. The judge then personally decided the matter. She neither informed the parties about her consultation with the other judge nor gave them the opportunity to object or respond. Was the judge’s conduct proper?
(A) Yes, because the judge did not identify the parties.
(B) Yes, because the judge personally decided the matter.
(C) No, because the judge did not give the parties prior notice that she planned to consult ex parte with the other judge concerning the matter.
(D) No, because the judge neither informed the parties about her consultation with the other judge nor gave them the opportunity to object or respond.
5. An attorney represented a mother in a child custody dispute. The father of the child was not represented by a lawyer. The mother told the attorney that she wanted to resolve the custody dispute amicably and asked the attorney to meet with the father to see if an agreement could be reached before the upcoming court date. The attorney met with the father, presented the mother’s proposed custody arrangement, and asked the father to agree to it. The father asked the attorney whether the custody arrangement was fair. The attorney advised the father to hire his own lawyer if he wanted advice regarding the fairness of the arrangement. The attorney did not offer any other advice. The father hired a lawyer, and the matter turned into an antagonistic negotiation that had to be resolved in court. Is the attorney subject to discipline?
(A) Yes, because the attorney asked the father to agree to the proposed custody arrangement.
(B) Yes, because the attorney advised the father to hire his own lawyer.
(C) No, because the attorney offered the father no advice other than to hire his own lawyer.
(D) No, because a lawyer may give legal advice to an unrepresented opposing party.
6. An attorney represented a client who was the plaintiff in a personal injury action. After the action had settled, the attorney received a check in the amount of $10,000 payable to the attorney, which she deposited in her client trust account. The next day, the attorney received a letter from a bank. The bank informed the attorney that the client had failed to make mortgage payments on a residential building for the last three months and demanded that the attorney immediately release $3,000 of the settlement proceeds to the bank to avert immediate foreclosure proceedings against the client. When the attorney, who did not represent the client in the mortgage matter, informed the client of the bank’s letter, the client did not dispute the $3,000 debt but expressed no concern for what the bank might do. The client believed that the building was essentially worthless, so he assumed that the bank would never foreclose. The client instructed the attorney to take her legal fees from the settlement and turn the rest of
the proceeds over to him. The attorney followed the client’s instructions. Is the attorney subject to discipline?
(A) Yes, because the client did not dispute the $3,000 debtto the bank.
(B) Yes, because the attorney knew that the client was planning to force the bank to foreclose the mortgage.
(C) No, because the attorney did not represent the client inthe mortgage matter.
(D) No, because the bank had no established right to the specific proceeds of the client’s personal injury settlement.
7. An attorney in a five-lawyer firm learned that one of her partners had charged personal expenses to a client and had fraudulently represented that the expenses were related to the client’s representation. After being confronted with evidence of the fraud, the partner resigned. The attorney disclosed the fraud to the client and directed the law firm’s billing department to refund the fraudulent charges to the client. The attorney asked the client whether the client wanted to disclose the partner’s conduct to the disciplinary authority. The client did not object to the disclosure but left the decision to the attorney.
Is the attorney required to report the partner’s conduct to the disciplinary authority?
(A) Yes, because lawyers must report all violations of the rules of professional conduct to disciplinary authorities.
(B) Yes, because the conduct raised a substantial question as to the partner’s honesty, trustworthiness, or fitness as a lawyer.
(C) No, because the attorney acted promptly to rectify any damage to the client caused by the partner’s conduct.
(D) No, because the attorney owes a continuing fiduciary duty to the partner with respect to matters that occurred during the course of their partnership.
8. An attorney represented the wife in an acrimonious divorce proceeding involving issues of property division and child custody. After one day of trial, the husband, through his lawyer, made a settlement offer. The proposed settlement required that the wife’s attorney agree not to represent the wife in any subsequent proceeding, brought by either party, to modify or enforce the provisions of the decree. The wife wanted to accept the offer, and her attorney reasonably believed that it was in the wife’s best interest to do so because the settlement offer was better than any potential award to the wife resulting
from the case going to judgment. Consequently, the attorney recommended to the wife that she accept the offer. Was it proper for the wife’s attorney to recommend that the wife accept the settlement offer?
(A) No, because the attorney did not obtain the wife’s informed consent to the conflict of interest created by the proposed settlement.
(B) No, because the proposed settlement restricted the attorney’s right to represent the wife in the future.
(C) Yes, because the restriction on the attorney was limited to subsequent proceedings in the same matter.
(D) Yes, because the attorney reasonably believed that it was in the wife’s best interest to accept the proposed settlement.
9. A man asked an attorney to represent him pro bono in an appeal from the denial of unemployment benefits. The attorney agreed but missed the deadline to file the appeal. When the attorney discovered his error, he met with the man and presented a proposed settlement of the man’s potential malpractice claim against the attorney. The attorney proposed to pay the man an amount equal to the unemployment benefits he would have received had his appeal been successful; in exchange, the man would agree to waive any malpractice claim. The attorney memorialized this proposed settlement
in a written document that included a statement advising the man to seek independent legal counsel before accepting the settlement and stating that the man could take as long as he needed to do this. However, without consulting independent legal counsel, the man agreed to and signed the proposed settlement the next week. The attorney subsequently paid the man the money he would have received from a successful appeal. Is the attorney subject to discipline?
(A) Yes, because the attorney made an agreement with the man to waive a potential claim for malpractice.
(B) Yes, because the man did not consult independent counsel before he agreed to the proposed settlement.
(C) No, because the attorney advised the man in writing to seek independent legal counsel before agreeing to the proposed settlement.
(D) No, because the attorney agreed to fully compensate the man for his losses.
10. An attorney represented a client in a breach of contract action against the client’s former business partner. During the representation, the client presented the attorney with incontrovertible proof that the former partner had committed perjury in unrelated litigation several years earlier. The prior litigation had been resolved in the former partner’s favor. Neither the attorney nor the client had been involved in any way in the prior litigation. However, at the time of the prior litigation, the client and the former partner had had a close personal and business relationship. The attorney believed that it would be
detrimental to the client’s best interests to reveal the former partner’s perjury because the court might draw negative inferences about the client from the former partner’s behavior. As a result, the attorney did not disclose the former partner’s prior perjury to the court. Was the attorney’s conduct proper?
(A) Yes, because the attorney believed that the disclosure would be detrimental to the client’s best interests.
(B) Yes, because neither the client nor the attorney had been involved in any way in the prior litigation.
(C) No, because the attorney possessed knowledge that the former partner had perpetrated a fraud on a tribunal.
(D) No, because the information regarding the prior perjury was not privileged.
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