MI Bar Multistate Professional Responsibility 3 — Questions and Answers
Question 1: A lawyer represents two co-defendants in a criminal case. Midway through, their defenses become directly antagonistic. What should the lawyer do?
- Continue representing both with informed consent
- Withdraw from representing both defendants (Correct answer)
- Choose the client who retained her first
- Ask the court to sever the trials and keep both clients
Correct answer: Withdraw from representing both defendants
When co-clients' positions become directly adverse, the conflict is generally nonconsentable and the lawyer must withdraw from both to avoid using confidences against a former client.
Question 2: A client tells his lawyer he intends to commit a fraud that will cause substantial financial injury, using the lawyer's prior services. May the lawyer disclose?
- No, confidentiality is absolute
- Yes, disclosure is permitted to prevent or mitigate the fraud when the client used the lawyer's services (Correct answer)
- Yes, but only after the fraud is completed
- Only with a court order
Correct answer: Yes, disclosure is permitted to prevent or mitigate the fraud when the client used the lawyer's services
Rule 1.6(b) permits disclosure to prevent, mitigate, or rectify substantial financial injury from a client's crime or fraud in furtherance of which the client used the lawyer's services.
Question 3: A lawyer serving as a part-time judge is asked to represent a party in a matter she heard as a judge. May she accept?
- Yes, if she remembers nothing about the matter
- No, unless all parties to the proceeding give informed consent, confirmed in writing (Correct answer)
- Yes, because part-time judges are exempt from conflict rules
- No, under no circumstances
Correct answer: No, unless all parties to the proceeding give informed consent, confirmed in writing
Rule 1.12 bars representation in a matter in which the lawyer participated personally and substantially as a judge, unless all parties give informed consent confirmed in writing.
Question 4: A lawyer negligently misses a statute of limitations, destroying the client's claim. Which is true regarding professional discipline?
- A single act of ordinary negligence typically does not itself violate the competence rule, though it may support malpractice liability (Correct answer)
- Any negligence automatically results in disbarment
- Missing a deadline is criminal conduct
- The lawyer cannot be sued if she refunds the fee
Correct answer: A single act of ordinary negligence typically does not itself violate the competence rule, though it may support malpractice liability
Discipline under Rule 1.1 generally targets a pattern or serious neglect, while a single negligent error is the province of civil malpractice.
Question 5: A lawyer wishes to limit the scope of a representation to drafting a single contract. Is this permissible?
- No, lawyers must handle all aspects of a client's matter
- Yes, if the limitation is reasonable under the circumstances and the client gives informed consent (Correct answer)
- Yes, without any client consent required
- Only in pro bono matters
Correct answer: Yes, if the limitation is reasonable under the circumstances and the client gives informed consent
Rule 1.2(c) allows limited-scope representation if the limitation is reasonable and the client gives informed consent.
Question 6: During jury deliberations, a lawyer's paralegal chats with a juror about the weather. Which statement is correct?
- It is harmless because the case was not discussed
- The lawyer is responsible for ensuring nonlawyer assistants avoid any ex parte contact with jurors during the proceeding (Correct answer)
- Only the paralegal can be disciplined
- Contact is fine if the juror initiated it
Correct answer: The lawyer is responsible for ensuring nonlawyer assistants avoid any ex parte contact with jurors during the proceeding
Rules 3.5 and 5.3 prohibit ex parte juror contact during proceedings and make lawyers responsible for their nonlawyer assistants' compliance.
Question 7: A lawyer holds disputed funds: the client claims the entire settlement, but a medical lienholder claims $5,000 of it. What should the lawyer do?
- Give everything to the client since the client is the principal
- Pay the lienholder immediately to avoid liability
- Distribute the undisputed portion and hold the disputed $5,000 in trust until the dispute is resolved (Correct answer)
- Deposit the entire settlement in the firm operating account
Correct answer: Distribute the undisputed portion and hold the disputed $5,000 in trust until the dispute is resolved
Under Rule 1.15, disputed funds must remain in trust until the dispute is resolved, while undisputed portions are promptly distributed.
MI Bar Multistate Professional Responsibility 3
A lawyer represents two co-defendants in a criminal case.
Midway through, their defenses become directly antagonistic.
What should the lawyer do?