MPRE Communication 5 — Questions and Answers
Question 1: An attorney advertises: 'I have never lost a criminal case.' In fact, two of his clients pleaded guilty and received favorable plea deals. Under Rule 7.1, this advertisement is:
- Permissible because guilty pleas are not 'losses' at trial
- Permissible if the attorney genuinely believes plea deals were victories
- False or misleading because it creates an unjustified expectation about outcomes (Correct answer)
- Permissible as long as it includes a disclaimer that results may vary
Correct answer: False or misleading because it creates an unjustified expectation about outcomes
Rule 7.1 prohibits communications that are false or misleading, including statements that create unjustified expectations about likely results; claiming never to have lost when the record is more complex violates this rule.
Question 2: A lawyer sends a targeted direct mail solicitation to accident victims within two days of their accidents, offering legal services. Under the Model Rules, this is:
- Prohibited as improper in-person solicitation
- Prohibited within 30 days of the accident under Rule 7.3 (Correct answer)
- Permitted as long as the envelope is clearly marked 'Advertising Material'
- Permitted because written solicitation carries fewer risks than in-person solicitation
Correct answer: Prohibited within 30 days of the accident under Rule 7.3
Rule 7.3 prohibits direct mail solicitation of prospective clients who have been involved in an accident for 30 days after the accident if the communication concerns that event.
Question 3: Two attorneys are co-counsel representing joint clients in a business dispute. One client instructs the attorneys to withhold certain damaging information from the other joint client. The attorneys should:
- Honor the instruction because attorney-client confidentiality applies between co-counsel and each client
- Disclose to the other joint client because joint representation does not permit concealment between co-clients (Correct answer)
- Seek a court order resolving the conflict before doing anything
- Withdraw from representing only the client who gave the instruction
Correct answer: Disclose to the other joint client because joint representation does not permit concealment between co-clients
In a joint representation, each client is entitled to be informed of information material to the representation; confidentiality as between co-clients does not permit one co-client to secretly direct counsel to withhold material information from the other.
Question 4: A lawyer uses a cloud-based email platform. He learns the platform had a data breach that may have exposed client communications. Under Rule 1.4, he should:
- Switch platforms immediately and say nothing to clients to avoid alarming them
- Notify affected clients of the breach so they can take appropriate protective steps (Correct answer)
- Notify clients only if there is definitive proof that their data was accessed
- Notify only clients currently in active litigation
Correct answer: Notify affected clients of the breach so they can take appropriate protective steps
Rule 1.4 requires a lawyer to keep clients reasonably informed of significant developments; a data breach affecting client communications is material information clients need to protect their interests.
Question 5: A criminal defense attorney learns through plea negotiations that the prosecutor would accept a plea deal the attorney personally believes is very favorable. The client has said he wants to go to trial 'no matter what.' The attorney should:
- Decline the plea deal on the client's behalf without further discussion, honoring prior instructions
- Communicate the offer to the client and ensure he understands it before honoring his prior instruction (Correct answer)
- Accept the plea deal over the client's objection because the attorney knows best
- Withdraw because the attorney disagrees with the client's strategy
Correct answer: Communicate the offer to the client and ensure he understands it before honoring his prior instruction
Rule 1.4 requires the attorney to communicate any plea offer to the client; a client's prior general instruction to go to trial does not waive the right to be informed of and consider a specific offer.
Question 6: An attorney's website states: 'Certified Specialist in Immigration Law.' The attorney completed a weekend seminar in immigration law but is not certified by any accredited organization or state bar authority. This advertisement:
- Is permissible because 'specialist' is a subjective term
- Violates Rule 7.2 because it implies certification by a recognized authority the attorney does not have (Correct answer)
- Is permissible as long as the website explains what the certification means
- Is only regulated by the FTC, not the Rules of Professional Conduct
Correct answer: Violates Rule 7.2 because it implies certification by a recognized authority the attorney does not have
Rule 7.2(c) permits certification claims only if the certifying organization is approved by the appropriate state authority or accredited by the ABA; falsely implying official certification violates Rule 7.1 as well.
Question 7: An attorney represents a child in a custody dispute. The child's guardian ad litem communicates with the attorney and provides instructions different from the child's expressed wishes. Under Rule 1.4, the attorney should primarily:
- Follow the guardian ad litem's instructions because the guardian is the legal decision-maker
- Communicate directly with the child to the extent possible given the child's age and capacity (Correct answer)
- Seek court appointment of a different guardian who agrees with the child
- Withdraw because of the conflict between the guardian and the child
Correct answer: Communicate directly with the child to the extent possible given the child's age and capacity
Rule 1.4 and Rule 1.14 together require a lawyer to maintain as direct a communication as reasonably possible with a minor client, taking into account the client's age and capacity, even when a guardian ad litem is appointed.
MPRE Communication 5
An attorney advertises: 'I have never lost a criminal case.' In fact, two of his clients pleaded guilty and received favorable plea deals.
Under Rule 7.1, this advertisement is: