MPRE Advocacy 4 — Questions and Answers
Question 1: A lawyer's client admits during trial preparation that she fabricated a key document that is now in evidence. The client refuses to correct the record. What is the lawyer's FIRST obligation?
- Immediately disclose the fraud to the court without further client consultation
- Counsel the client on the consequences and urge her to correct the false evidence (Correct answer)
- Withdraw from the case without disclosing the reason to the court
- File a motion in limine to exclude the document from further consideration
Correct answer: Counsel the client on the consequences and urge her to correct the false evidence
Under Rule 3.3, before taking other remedial measures, the attorney must first remonstrate with the client and urge correction of the false evidence.
Question 2: During voir dire, a juror reveals she has strong opinions about the type of case being tried but claims she can be impartial. The attorney believes the juror cannot be fair. Under Rule 3.5, the attorney may:
- Communicate privately with the juror to assess her impartiality further
- Challenge the juror for cause or use a peremptory challenge during voir dire (Correct answer)
- Request the judge replace the juror with an alternate without stating a reason
- Do nothing because juror selection is the court's responsibility
Correct answer: Challenge the juror for cause or use a peremptory challenge during voir dire
Rule 3.5 prohibits improper communication with jurors, but the proper mechanism for addressing juror bias is through challenges during the voir dire process.
Question 3: An attorney knows that a legal precedent directly adverse to her client's position exists in the controlling jurisdiction but opposing counsel has not cited it. Under Rule 3.3(a)(2), the attorney must:
- Disclose the adverse authority to the tribunal (Correct answer)
- Remain silent because it is opposing counsel's duty to find and cite adverse authority
- Distinguish the precedent in her brief without volunteering its citation
- Seek the client's permission before disclosing the authority
Correct answer: Disclose the adverse authority to the tribunal
Rule 3.3(a)(2) requires a lawyer to disclose directly adverse controlling legal authority to the tribunal even if opposing counsel has not cited it.
Question 4: Which of the following is a permissible method of witness preparation under Rule 3.4?
- Advising a witness to refuse to answer any question if the answer might hurt the client
- Paying a fact witness a fee substantially higher than reasonable compensation for lost time
- Reviewing anticipated questions and helping the witness organize truthful recollections (Correct answer)
- Instructing a witness to claim memory loss about certain topics on the stand
Correct answer: Reviewing anticipated questions and helping the witness organize truthful recollections
Rule 3.4 permits attorneys to prepare witnesses by reviewing anticipated questions and helping them organize their truthful recollections, but prohibits coaching false testimony.
Question 5: An attorney files a civil complaint without adequate factual investigation, believing the facts supporting the claim 'will probably come out in discovery.' Under Rule 3.1, this conduct is:
- Permissible because discovery may reveal the necessary facts
- Permissible in civil cases, though not in criminal cases
- Impermissible because the attorney must have a non-frivolous basis before filing (Correct answer)
- Permissible if the attorney files an amended complaint once facts are confirmed
Correct answer: Impermissible because the attorney must have a non-frivolous basis before filing
Rule 3.1 requires lawyers to have a non-frivolous basis for all claims before filing; hoping discovery will supply missing facts does not satisfy this requirement.
Question 6: A defense attorney in a criminal case wants to present the 'narrative' approach because her client insists on testifying but she knows the testimony is false. Under the Model Rules, the attorney should:
- Allow the client to give a narrative statement without questioning, then argue the testimony in closing
- Present the false testimony because the criminal defendant has a constitutional right to testify
- Refuse to allow the client to testify and move to withdraw from the case
- Allow the narrative only if the jurisdiction's rules expressly permit it and she does not vouch for its truth (Correct answer)
Correct answer: Allow the narrative only if the jurisdiction's rules expressly permit it and she does not vouch for its truth
Some jurisdictions permit the narrative approach for defendant perjury as a compromise, but it is only permissible where allowed by local rules and the attorney must not vouch for the testimony.
Question 7: Under Rule 3.8, a prosecutor who knows before trial that a defendant is not legally competent to stand trial must:
- Proceed to trial because competency determinations are for the court, not the prosecutor
- Disclose the information to the defense and seek a competency evaluation (Correct answer)
- Dismiss the charges and refile when the defendant regains competency
- Consult with supervising authorities before taking any action
Correct answer: Disclose the information to the defense and seek a competency evaluation
Rule 3.8 requires prosecutors to make reasonable efforts to ensure defendants have been advised of their rights, which includes not knowingly prosecuting an incompetent defendant.
MPRE Advocacy 4
A lawyer's client admits during trial preparation that she fabricated a key document that is now in evidence.
The client refuses to correct the record.
What is the lawyer's FIRST obligation?