MPRE Confidentiality 2 — Questions and Answers
Question 1: An attorney represents a corporation in a contract dispute. During discovery, the attorney learns that a mid-level employee committed fraud that harmed third parties but is unrelated to the current case. Under the Model Rules, the attorney:
- Must report the fraud to law enforcement immediately
- May disclose the fraud only if it involved the client corporation itself
- Generally must keep the information confidential as it relates to the representation (Correct answer)
- Must withdraw from the representation and report the fraud
Correct answer: Generally must keep the information confidential as it relates to the representation
Information learned during a representation is protected by Rule 1.6 confidentiality, and the fraud exception applies only to future crimes, not past ones by third parties.
Question 2: A lawyer is subpoenaed to testify about a conversation with a former client. The client has died. Under the Model Rules, the duty of confidentiality:
- Ends automatically upon the client's death
- Continues after the client's death (Correct answer)
- Transfers to the client's estate and heirs
- Can be waived by the probate court
Correct answer: Continues after the client's death
The duty of confidentiality under Rule 1.6 survives the client's death and does not automatically terminate.
Question 3: A lawyer inadvertently discloses confidential client information in an email sent to opposing counsel. Under the Model Rules, the lawyer should:
- Do nothing because the disclosure was inadvertent
- Promptly notify the recipient of the inadvertent disclosure and request return of the information (Correct answer)
- Withdraw from the representation immediately
- File a motion to suppress the information
Correct answer: Promptly notify the recipient of the inadvertent disclosure and request return of the information
Rule 4.4(b) requires a lawyer who inadvertently sends documents containing another person's confidential information to promptly notify the sender, and the receiving lawyer should follow Rule 1.6 regarding their own client's inadvertent disclosures.
Question 4: A client tells her attorney she plans to commit perjury at trial. After the attorney counsels the client against it, the client insists. Under the Model Rules, if the client takes the stand and commits perjury, the attorney:
- Must immediately disclose the perjury to the tribunal
- Must withdraw from the case without disclosing the perjury
- May reveal the perjury to the tribunal if necessary to rectify it (Correct answer)
- Must maintain confidentiality and take no action
Correct answer: May reveal the perjury to the tribunal if necessary to rectify it
Rule 3.3(b) permits—and may require—disclosure of client perjury to the tribunal when necessary to correct the record, overriding Rule 1.6 confidentiality.
Question 5: A lawyer's client confesses to a murder committed 10 years ago for which an innocent person is currently imprisoned. Under the Model Rules, the lawyer:
- Must disclose to free the innocent person
- May disclose to prevent substantial bodily harm to the innocent person
- Has no discretionary or mandatory exception to confidentiality for past crimes (Correct answer)
- Must report to law enforcement but not the court
Correct answer: Has no discretionary or mandatory exception to confidentiality for past crimes
Confidential information about past crimes does not fall within Rule 1.6's exceptions, which address future harm, not past crimes—even when an innocent person is imprisoned.
Question 6: Which of the following is a permissive (not mandatory) exception to the duty of confidentiality under Rule 1.6?
- Responding to a court order requiring disclosure
- Disclosing to prevent a client from committing a crime likely to result in substantial financial harm (Correct answer)
- Complying with the Rules of Professional Conduct themselves
- Disclosing information to collect a fee in a fee dispute
Correct answer: Disclosing to prevent a client from committing a crime likely to result in substantial financial harm
Rule 1.6(b)(2) creates a permissive exception allowing disclosure to prevent reasonably certain substantial financial harm from client fraud when the lawyer's services were used.
Question 7: An attorney hired solely to do legal research discovers during the research that the client intends to use the work product to defraud investors. The attorney's duty of confidentiality:
- Does not apply because the attorney is not trial counsel
- Applies to all information relating to the representation regardless of role (Correct answer)
- Applies only if the attorney personally communicates with the client
- Does not apply to information discovered through public records research
Correct answer: Applies to all information relating to the representation regardless of role
Rule 1.6 applies to all information relating to the representation, regardless of the lawyer's specific role or how the information was obtained.
MPRE Confidentiality 2
An attorney represents a corporation in a contract dispute.
During discovery, the attorney learns that a mid-level employee committed fraud that harmed third parties but is unrelated to the current case.
Under the Model Rules, the attorney: