MPRE Communication 4 — Questions and Answers
Question 1: An attorney represents the seller in a real estate transaction. The buyer has no attorney. During a closing negotiation, the buyer asks the attorney to explain what a particular contract clause means for her. The attorney should:
- Explain the clause fully because it promotes an efficient closing
- Decline to give legal advice and clarify that the attorney represents only the seller (Correct answer)
- Advise the buyer to get her own attorney and then explain the clause anyway
- Prepare a neutral written explanation for both parties
Correct answer: Decline to give legal advice and clarify that the attorney represents only the seller
Under Rule 4.3, when dealing with an unrepresented person, a lawyer must not give legal advice other than to advise the person to secure counsel, and must make clear who the lawyer represents.
Question 2: A lawyer discovers that an unrepresented witness she is interviewing for her client's case appears to misunderstand that the lawyer is adverse to the witness's interests. Rule 4.3 requires the lawyer to:
- Correct the misunderstanding by clarifying her role and that she does not represent the witness (Correct answer)
- End the interview immediately to avoid any Rule 4.3 issues
- Continue the interview because the witness is not a party
- Provide neutral factual information but not legal advice
Correct answer: Correct the misunderstanding by clarifying her role and that she does not represent the witness
Rule 4.3 requires a lawyer to correct any misunderstanding an unrepresented person has about the lawyer's role, particularly regarding who the lawyer represents.
Question 3: A plaintiff's attorney is negotiating directly with a pro se defendant who lacks legal training. During negotiations the attorney tells the defendant, 'Courts almost never rule for defendants in cases like this — you should just settle.' This statement is:
- Permissible as zealous advocacy for the client
- Impermissible if it is materially misleading to the unrepresented party (Correct answer)
- Permissible as long as the attorney believes it is generally true
- Permissible because the defendant chose to proceed without counsel
Correct answer: Impermissible if it is materially misleading to the unrepresented party
Rule 4.3 prohibits a lawyer from stating or implying disinterest and bars making materially misleading statements to unrepresented persons; overstatements of weakness in a pro se opponent's position can violate this rule.
Question 4: A defense attorney contacts an unrepresented potential claimant before litigation begins and suggests she sign a quick release for a small payment, without telling her that the injury may be more serious than she realizes. The attorney is:
- Acting ethically because the claimant is free to reject the offer
- Potentially violating Rule 4.3 by misleading the unrepresented person (Correct answer)
- Acting ethically because pre-suit settlements are encouraged
- Only liable if the claimant later proves the injury was serious
Correct answer: Potentially violating Rule 4.3 by misleading the unrepresented person
Rule 4.3 prohibits giving legal advice to an unrepresented person whose interests are adverse, and exploiting an informational advantage to induce a settlement without disclosure implicates the prohibition on misleading conduct.
Question 5: An attorney receives an inadvertently sent email from opposing counsel containing privileged attorney-client communications about trial strategy. Under the Model Rules, the attorney must first:
- Read the email thoroughly to decide whether it contains anything useful
- Promptly notify opposing counsel of the inadvertent disclosure (Correct answer)
- Forward the email to the client immediately
- Seek a court ruling on whether the privilege was waived before doing anything
Correct answer: Promptly notify opposing counsel of the inadvertent disclosure
Rule 4.4(b) requires a lawyer who receives inadvertently sent documents relating to the opposing party's representation to promptly notify the sender.
Question 6: A lawyer is representing a creditor in a debt collection matter. The debtor is unrepresented. The lawyer calls the debtor repeatedly at 11 p.m. to pressure payment. This conduct:
- Is permissible because the lawyer is advancing the client's financial interests
- Violates Rule 4.4 which prohibits using means that have no substantial purpose other than to embarrass or harass (Correct answer)
- Is only regulated by the Fair Debt Collection Practices Act, not the Rules of Professional Conduct
- Is permissible if the debtor does not formally object
Correct answer: Violates Rule 4.4 which prohibits using means that have no substantial purpose other than to embarrass or harass
Rule 4.4(a) prohibits a lawyer from using means that have no substantial purpose except to embarrass, delay, or burden a third person, including harassing contact with an unrepresented debtor.
Question 7: An attorney representing a plaintiff in a slip-and-fall case wants to interview the store manager, who is unrepresented personally but works for the defendant corporation. The corporation's counsel has not been notified. Which statement is most accurate?
- The attorney may interview the manager only if the manager is not a managing agent of the corporation (Correct answer)
- The attorney must always get consent of the corporation's counsel before speaking to any employee
- The attorney may freely interview the manager because he is personally unrepresented
- The attorney must advise the manager that he has the right to consult with the corporation's counsel
Correct answer: The attorney may interview the manager only if the manager is not a managing agent of the corporation
Under Rule 4.2's organizational constituent analysis, employees whose statements could bind the organization or who were involved in the underlying events require counsel's consent; those outside these categories may be contacted under Rule 4.3 standards.
MPRE Communication 4
An attorney represents the seller in a real estate transaction.
The buyer has no attorney.
During a closing negotiation, the buyer asks the attorney to explain what a particular contract clause means for her.
The attorney should: