Transactions with Non-Clients Flashcards

A lawyer discovers that opposing counsel inadvertently sent a privileged memo to the lawyer via email. Under Rule 4.4(b), the lawyer must:

Answer: Promptly notify the sending lawyer of the inadvertent disclosure

Rule 4.4(b) requires a lawyer who receives inadvertently sent documents to promptly notify the sender, regardless of whether the lawyer reads them first.

A lawyer is retained to help a client structure a transaction. The lawyer later determines that the transaction's primary purpose is to defraud a non-client creditor. The lawyer must:

Answer: Refuse to assist and, if necessary, withdraw from the representation

A lawyer may not assist a client in conduct the lawyer knows is fraudulent or criminal, and must withdraw if the client insists on proceeding.

Under the MPRE, a lawyer who deals with a represented opposing party's non-lawyer agent (e.g., a claims adjuster) without counsel's consent:

Answer: Does not violate Rule 4.2 because the agent is not the represented party

Rule 4.2 protects the represented party themselves; communication with the party's non-lawyer agents generally does not violate Rule 4.2 unless the agent has authority to bind the party.

An attorney negotiating on behalf of a client overstates the strength of the client's legal position to the unrepresented opposing party. This is:

Answer: Permitted because puffery and legal opinions are not 'facts' under Rule 4.1

Under Rule 4.1 Comment 2, statements of a party's negotiating position or legal opinion are generally not treated as statements of 'fact,' so overstatement of legal strength is not a Rule 4.1 violation.

A lawyer for a plaintiff sends a subpoena to a non-party witness requiring document production. The witness (non-client) objects that the subpoena is unduly burdensome. The lawyer must:

Answer: Take reasonable steps to avoid imposing undue burden on the non-party

Rule 4.4(a) requires a lawyer to take reasonable steps to avoid imposing undue burden on third persons, even when pursuing legitimate discovery objectives.

A lawyer is authorized by the client to settle a claim. During settlement negotiations with the unrepresented claimant, the lawyer misrepresents that the client has limited insurance coverage. This violates:

Answer: Rule 4.1, because coverage limits are a material fact relevant to the negotiation

Insurance coverage limits are material facts in a settlement negotiation, and misrepresenting them to a third party violates Rule 4.1's prohibition on false statements of material fact.

A lawyer representing a defendant in a civil case wants to have an investigator interview the plaintiff's treating physician without the plaintiff's attorney's knowledge. Under Rule 4.2, this is:

Answer: Permitted because the physician is a fact witness, not a represented party

The treating physician is a non-party witness, not a represented party; Rule 4.2 does not bar contact with non-party witnesses, though other rules (e.g., privilege, Rule 4.4) may apply.