MPRE Advocacy 3 — Questions and Answers
Question 1: A defense attorney in a capital case learns from her client, before sentencing, that the client committed another murder for which someone else has been convicted. The attorney may NOT disclose this information unless:
- The client gives informed consent to disclosure (Correct answer)
- The attorney believes the disclosure would help her client's sentence
- The other conviction is more than five years old
- The other convicted person has already exhausted appeals
Correct answer: The client gives informed consent to disclosure
Confidential client information may only be disclosed without client consent under the specific exceptions in Rule 1.6, and client consent always permits disclosure.
Question 2: An attorney represents a plaintiff in a civil trial. During a recess, the attorney overhears the defendant's attorney coaching a non-party witness on what to say. Under Rule 3.4, the attorney should:
- Immediately report the conduct to the judge on the record (Correct answer)
- Confront the opposing attorney directly before taking other steps
- Take appropriate action, which may include informing the court or the opposing attorney's bar
- Do nothing because witness preparation is permissible
Correct answer: Immediately report the conduct to the judge on the record
Coaching a witness to give false testimony violates Rule 3.4(b), and the observing attorney should report the misconduct to the tribunal.
Question 3: Under Rule 3.6, which of the following statements by a criminal defense attorney to the press would be permissible?
- 'The prosecution's key witness has a prior conviction for fraud.'
- 'My client is innocent and I expect an acquittal.' (Correct answer)
- 'The lab results conclusively prove my client could not have committed this crime.'
- 'The jury will convict based on the media circus the prosecution has created.'
Correct answer: 'My client is innocent and I expect an acquittal.'
Rule 3.6 permits statements that a general description of the claim or defense contains; claiming innocence is generally permissible, while prejudicial factual assertions about evidence or witnesses are not.
Question 4: An attorney arguing before a legislative committee presents his client's position with one-sided arguments, omitting facts unfavorable to his client. Under Rule 3.9:
- This violates Rule 3.9 because the attorney must be candid in all proceedings
- This is permissible because Rule 3.9 applies only the duty of candor, not the duty to present both sides
- This violates Rule 3.3 because the omissions constitute false statements
- This is permissible because attorneys may advocate zealously before legislative bodies (Correct answer)
Correct answer: This is permissible because attorneys may advocate zealously before legislative bodies
Rule 3.9 applies Rules 3.3(a)–(c), 3.4(a)–(c), and 3.5 to nonadjudicative proceedings but does not require attorneys to present opposing arguments before legislative bodies.
Question 5: A civil litigator discovers during discovery that a document highly damaging to her client's case was not produced. The opposing party has not yet requested it. What must the attorney do?
- Withhold the document because opposing counsel failed to request it specifically
- Produce the document voluntarily because withholding it would be obstruction under Rule 3.4(a) (Correct answer)
- Seek a protective order to shield the document from disclosure
- Consult with the client and, if the client insists, withhold the document
Correct answer: Produce the document voluntarily because withholding it would be obstruction under Rule 3.4(a)
Rule 3.4(a) prohibits unlawfully obstructing another party's access to evidence, and deliberately concealing discoverable material evidence violates this rule.
Question 6: An attorney makes an ex parte communication with a judge to request a scheduling extension when opposing counsel is unreachable. Under Rule 3.5(b):
- This is prohibited because all ex parte communications with judges are forbidden
- This is permissible when authorized by law or court order, such as scheduling matters (Correct answer)
- This is permissible only if the attorney notifies opposing counsel within 24 hours
- This is prohibited unless the communication concerns only procedural matters and is in writing
Correct answer: This is permissible when authorized by law or court order, such as scheduling matters
Rule 3.5(b) prohibits ex parte communications with judges except when authorized by law or court order, and courts routinely permit administrative ex parte contact for scheduling.
Question 7: A prosecutor subpoenas a criminal defense attorney to testify before a grand jury about a conversation with a former client. Under Rule 3.8(f), the prosecutor should:
- Issue the subpoena freely because grand jury investigations take precedence over privilege
- Refrain from subpoenaing the defense attorney unless the information is essential and unprivileged (Correct answer)
- Obtain judicial approval before issuing the subpoena
- Notify the defense attorney's bar association before proceeding
Correct answer: Refrain from subpoenaing the defense attorney unless the information is essential and unprivileged
Rule 3.8(f) restricts prosecutors from subpoenaing lawyers in grand jury proceedings to obtain client information unless the information is not privileged, essential, and no reasonable alternative exists.
MPRE Advocacy 3
A defense attorney in a capital case learns from her client, before sentencing, that the client committed another murder for which someone else has been convicted.
The attorney may NOT disclose this information unless: