MPRE Advocacy 5 — Questions and Answers
Question 1: An attorney representing a client in a civil case learns mid-trial that a key legal theory in her brief is based on a case that was subsequently overruled. She has not yet cited the case in oral argument. What must she do under Rule 3.3?
- Proceed with oral argument without mentioning the overruled case
- Inform the court that the authority she cited in her brief has been overruled (Correct answer)
- File an amended brief after trial concludes to note the overruled precedent
- Withdraw from the case to avoid presenting false legal authority
Correct answer: Inform the court that the authority she cited in her brief has been overruled
Rule 3.3(a)(1) prohibits knowingly making false statements of law to a tribunal; once an attorney knows cited authority is overruled, she must correct the record.
Question 2: Under Rule 3.5, which of the following is the ONLY permissible communication with a sitting juror during trial?
- A brief greeting in passing in a courthouse corridor (Correct answer)
- Asking the juror how the trial is going to gauge jury sentiment
- Discussing the case in general terms without mentioning the evidence
- Inviting the juror to a firm social event scheduled after the verdict
Correct answer: A brief greeting in passing in a courthouse corridor
Rule 3.5(b) prohibits attorneys from communicating with jurors about the case; incidental, non-case-related exchanges (like a greeting) are the only contacts that do not violate the rule.
Question 3: A plaintiff's attorney obtains a court order compelling production of documents. The opposing party's attorney advises her client to destroy documents subject to the order before they are produced. This violates:
- Rule 3.4(a) only, which prohibits obstructing access to evidence
- Rule 3.4(a) and possibly criminal obstruction laws (Correct answer)
- Rule 3.1 because it renders the litigation meritless
- No ethics rule because the documents belong to the client
Correct answer: Rule 3.4(a) and possibly criminal obstruction laws
Rule 3.4(a) prohibits unlawfully altering, destroying, or concealing evidence, and advising a client to destroy court-ordered documents also likely constitutes criminal obstruction.
Question 4: Under Rule 3.6, which of the following statements about a pending criminal case would NOT be subject to the trial publicity restrictions?
- A description of the evidence the prosecutor intends to introduce
- A statement that the case involves allegations of embezzlement (Correct answer)
- Comments about the expected testimony of a key prosecution witness
- An opinion about the likely outcome of the trial
Correct answer: A statement that the case involves allegations of embezzlement
Rule 3.6(b)(1) explicitly permits a lawyer to state the general nature of the claim or defense, which includes describing the general type of case without revealing prejudicial details.
Question 5: A criminal defense attorney learns that her client has secretly paid the prosecution's main witness to testify falsely. The attorney was not involved in the scheme. She must:
- Maintain confidentiality and say nothing because she was not complicit
- Use the false testimony to the client's advantage if it helps the defense
- Take reasonable remedial measures under Rule 3.3, including possible disclosure to the tribunal (Correct answer)
- Move for a mistrial without revealing why to preserve the client's privilege
Correct answer: Take reasonable remedial measures under Rule 3.3, including possible disclosure to the tribunal
Rule 3.3(b) requires an attorney who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to a proceeding to take reasonable remedial measures.
Question 6: An attorney is asked to represent a client in a legislative hearing before a state assembly committee. Under Rule 3.9, which Rule 3.3 duty does NOT apply to this nonadjudicative proceeding?
- The duty not to make false statements of fact or law
- The duty to disclose directly adverse controlling legal authority (Correct answer)
- The duty to take remedial measures when a client has offered false evidence
- The duty not to knowingly offer false evidence
Correct answer: The duty to disclose directly adverse controlling legal authority
Rule 3.9 applies Rules 3.3(a)–(c) and (b) but not 3.3(a)(2), because the duty to cite adverse controlling authority is specific to adjudicative proceedings before courts.
Question 7: A prosecutor obtains a confession that she believes is true but knows was obtained in violation of the defendant's Fourth Amendment rights. Under Rule 3.8, the prosecutor should:
- Use the confession because its truthfulness outweighs the constitutional violation
- Move to introduce the confession and let the court rule on its admissibility
- Refrain from using evidence she knows was obtained in violation of the defendant's legal rights (Correct answer)
- Disclose the violation to the defense and allow them to decide whether to suppress it
Correct answer: Refrain from using evidence she knows was obtained in violation of the defendant's legal rights
Rule 3.8(a) prohibits a prosecutor from pursuing charges or using evidence the prosecutor knows was obtained in violation of the accused's constitutional or legal rights.
MPRE Advocacy 5
An attorney representing a client in a civil case learns mid-trial that a key legal theory in her brief is based on a case that was subsequently overruled.
She has not yet cited the case in oral argument.
What must she do under Rule 3.3?