DE Bar Ethics and Professional Responsibility 3 — Questions and Answers
Question 1: A Delaware lawyer is contacted by a prospective client who shares confidential details but does not retain the lawyer. Under Rule 1.18, the lawyer:
- Owes no duties because no attorney-client relationship formed
- May not use or reveal information learned in the consultation except as Rule 1.9 would allow (Correct answer)
- Must represent the prospective client if asked
- Must destroy all notes within 24 hours
Correct answer: May not use or reveal information learned in the consultation except as Rule 1.9 would allow
Rule 1.18 protects prospective clients' information much like former clients' information under Rule 1.9.
Question 2: A lawyer wants to communicate directly with the opposing party, who is represented by counsel, about the subject of the litigation. The lawyer may do so only if:
- The communication occurs outside business hours
- The opposing party initiates the contact
- The opposing party's lawyer consents or the contact is authorized by law or court order (Correct answer)
- The lawyer copies opposing counsel afterward
Correct answer: The opposing party's lawyer consents or the contact is authorized by law or court order
Rule 4.2 bars communication with a represented person about the matter absent consent of that person's lawyer or legal authorization.
Question 3: A prosecutor in a Delaware criminal case possesses evidence that tends to negate the guilt of the accused. Under Rule 3.8, the prosecutor must:
- Disclose it only if the defense specifically requests it
- Make timely disclosure to the defense (Correct answer)
- Withhold it if the case is strong on other grounds
- Disclose it only after conviction
Correct answer: Make timely disclosure to the defense
Rule 3.8(d) requires prosecutors to make timely disclosure of evidence that tends to negate guilt or mitigate the offense.
Question 4: A lawyer who is a partner at a firm learns that another partner has misappropriated client trust funds. Under Rule 8.3, the lawyer:
- Must report the violation to the Office of Disciplinary Counsel because it raises a substantial question of honesty and trustworthiness (Correct answer)
- May stay silent to protect firm reputation
- Need only report if a client complains first
- Should handle it internally through the firm's HR department only
Correct answer: Must report the violation to the Office of Disciplinary Counsel because it raises a substantial question of honesty and trustworthiness
Rule 8.3 mandates reporting misconduct that raises a substantial question about a lawyer's honesty, trustworthiness, or fitness.
Question 5: A lawyer proposes to limit the scope of a representation to reviewing a single contract for a flat fee. This limited-scope arrangement is proper if:
- The limitation is reasonable under the circumstances and the client gives informed consent (Correct answer)
- The client is a sophisticated business entity only
- A judge approves the arrangement in advance
- The fee is under a set dollar threshold
Correct answer: The limitation is reasonable under the circumstances and the client gives informed consent
Rule 1.2(c) allows limiting the scope of representation if reasonable under the circumstances and the client gives informed consent.
Question 6: A lawyer holds disputed funds claimed by both the client and a third-party medical lienholder. Under Rule 1.15, the lawyer should:
- Give all funds to the client since the client is the principal
- Keep the disputed portion separate in trust until the dispute is resolved (Correct answer)
- Split the funds evenly between the claimants
- Deposit the funds into the firm operating account pending resolution
Correct answer: Keep the disputed portion separate in trust until the dispute is resolved
Disputed funds must remain in the trust account until the dispute over entitlement is resolved.
Question 7: A lawyer running for judicial office in Delaware knowingly makes a false statement about an opponent's record. This conduct violates:
- No rule, because campaign speech is fully protected
- Rule 8.2, which prohibits knowingly false statements concerning the qualifications or integrity of judges and judicial candidates (Correct answer)
- Only election law, not the ethics rules
- Rule 1.6 on confidentiality
Correct answer: Rule 8.2, which prohibits knowingly false statements concerning the qualifications or integrity of judges and judicial candidates
Rule 8.2 bars statements the lawyer knows to be false or made with reckless disregard concerning judicial officers and candidates.
DE Bar Ethics and Professional Responsibility 3
A Delaware lawyer is contacted by a prospective client who shares confidential details but does not retain the lawyer.
Under Rule 1.18, the lawyer: