MPRE Confidentiality 3 — Questions and Answers
Question 1: A law firm wants to use a cloud-based document management system to store client files. Under the Model Rules, the firm:
- May not use cloud storage because it violates confidentiality per se
- May use cloud storage if it takes reasonable precautions to protect client information (Correct answer)
- Must obtain written consent from each client before using cloud storage
- May use cloud storage only for non-sensitive documents
Correct answer: May use cloud storage if it takes reasonable precautions to protect client information
Rule 1.6(c) requires lawyers to make reasonable efforts to prevent unauthorized disclosure, which can be satisfied for cloud storage through appropriate due diligence and safeguards.
Question 2: A prosecutor possesses confidential information from a prior private law practice that is material to a pending prosecution. The prosecutor should:
- Disclose the information to the defense because the duty of confidentiality does not apply to prosecutors
- Recuse from the case and screen herself from participation (Correct answer)
- Use the information because the public interest in prosecution outweighs confidentiality
- Disclose the information to the court in camera
Correct answer: Recuse from the case and screen herself from participation
Rule 1.11 requires government lawyers who have confidential information from prior private practice to be screened from matters where that information would be material.
Question 3: A client authorizes her attorney to share confidential information with a consulting expert retained by the firm. A year later, the representation ends. The expert's obligation to maintain confidentiality:
- Ends when the representation ends
- Continues because the attorney's Rule 1.6 obligations extend through agents (Correct answer)
- Never existed because the client authorized the disclosure
- Depends on whether the expert signed a confidentiality agreement
Correct answer: Continues because the attorney's Rule 1.6 obligations extend through agents
Under Rule 1.6 Comment [16], lawyers must take reasonable steps to ensure that agents such as experts also maintain confidentiality of client information.
Question 4: During settlement negotiations, opposing counsel asks the attorney to confirm that the client has a prior felony conviction. The attorney knows this is true. Under the Model Rules, the attorney:
- Must confirm the conviction because it is public record
- May decline to answer to protect client confidentiality (Correct answer)
- Must affirmatively deny the conviction to protect the client
- Must disclose the conviction to opposing counsel
Correct answer: May decline to answer to protect client confidentiality
Even if information is technically public, an attorney may decline to confirm it to protect client confidentiality, as long as the attorney does not make a false statement.
Question 5: A lawyer receives a grand jury subpoena seeking client documents. The client has not consented to disclosure. The attorney should first:
- Immediately comply because court orders supersede confidentiality
- Inform the client and move to quash or limit the subpoena if appropriate (Correct answer)
- Destroy the documents to protect client confidentiality
- Disclose only documents not protected by attorney-client privilege
Correct answer: Inform the client and move to quash or limit the subpoena if appropriate
Rule 1.6(b)(6) allows disclosure ordered by a court, but the lawyer should first consult the client and consider whether to challenge the subpoena before complying.
Question 6: An attorney interviews a potential client who ultimately retains a different lawyer. The information disclosed during the consultation is:
- Not confidential because no attorney-client relationship was formed
- Protected under Rule 1.6 as if the person had been a client (Correct answer)
- Protected only if the person specifically requested confidentiality
- Protected only if the attorney performed legal services
Correct answer: Protected under Rule 1.6 as if the person had been a client
Rule 1.18 protects information disclosed by prospective clients during consultations, even when no formal representation begins.
Question 7: A lawyer knows that a co-defendant in a joint representation has made statements that are damaging to the other co-defendant. Under the Model Rules, the lawyer:
- Must immediately disclose the statements to all co-defendants
- Must keep the statements confidential from the co-defendant they harm
- Must withdraw from the joint representation
- May disclose only with the consent of the co-defendant who made the statements (Correct answer)
Correct answer: May disclose only with the consent of the co-defendant who made the statements
In joint representations, attorneys must explain at the outset how confidentiality works; generally, a client's communications cannot be shared with co-clients without consent.
MPRE Confidentiality 3
A law firm wants to use a cloud-based document management system to store client files.
Under the Model Rules, the firm: