MPRE Confidentiality 4 — Questions and Answers
Question 1: An attorney's client is a limited liability company that is being wound down. During winding up, the attorney learns that officers committed fraud during the company's operation. Who controls the attorney-client privilege and confidentiality for the defunct entity?
- The former officers who communicated with the attorney
- The shareholders of the now-dissolved company
- The successor management, trustee, or receiver managing winding up (Correct answer)
- No one—confidentiality ends when the entity dissolves
Correct answer: The successor management, trustee, or receiver managing winding up
For entities in dissolution, the privilege and confidentiality are controlled by whoever has authority over the entity, such as a trustee, receiver, or successor in winding up.
Question 2: A lawyer is asked by a journalist to confirm whether a named individual is the lawyer's client. Under the Model Rules, the attorney:
- Must confirm or deny because identity is not confidential
- May decline to confirm or deny the existence of a representation (Correct answer)
- Must deny to protect confidentiality regardless of the truth
- Must confirm if the client's identity is publicly known
Correct answer: May decline to confirm or deny the existence of a representation
The existence of an attorney-client relationship can itself be confidential information under Rule 1.6, and the attorney may decline to confirm or deny it.
Question 3: A client gives a lawyer documents and asks the lawyer to destroy them after the matter concludes, fearing the documents could be used against the client in future litigation. The attorney should:
- Destroy the documents promptly per client instruction
- Refuse to destroy documents that are potentially relevant to anticipated litigation (Correct answer)
- Return the documents to the client rather than destroying them
- Destroy the documents but keep a record that they existed
Correct answer: Refuse to destroy documents that are potentially relevant to anticipated litigation
Destroying documents when litigation is reasonably anticipated could constitute obstruction of justice, which an attorney cannot assist with under Rule 1.2(d).
Question 4: An attorney withdraws from representing a client. A subsequent attorney requests the former attorney's file. Under the Model Rules, the former attorney:
- Must transfer the entire file immediately
- May withhold the file until fees owed are paid in all circumstances
- Must transfer documents the client is entitled to but may retain copies (Correct answer)
- Has no obligation to cooperate with successor counsel
Correct answer: Must transfer documents the client is entitled to but may retain copies
Rule 1.16(d) requires the attorney to surrender papers and property to which the client is entitled upon termination, though the attorney may retain copies.
Question 5: A law firm's paralegal overhears confidential client communications while working on the case. The paralegal later leaves to work at opposing counsel's firm. Under the Model Rules:
- The paralegal may freely use the information at the new firm
- The new firm should screen the paralegal and the paralegal must not reveal the information (Correct answer)
- The confidentiality obligation applies only to licensed attorneys
- The client must seek a disqualification order to prevent disclosure
Correct answer: The new firm should screen the paralegal and the paralegal must not reveal the information
Confidentiality obligations under Rule 1.6 extend through supervisory duties to non-attorney staff, and imputed disqualification rules require screening of lateral non-attorney employees.
Question 6: A lawyer's client reveals during an intake meeting that he previously confessed to an uncharged murder. The lawyer decides not to take the case. Under the Model Rules, the lawyer:
- May disclose the murder confession to law enforcement since no representation occurred
- Must keep the confession confidential under Rule 1.18 as a prospective client communication (Correct answer)
- Must report the murder to law enforcement as a civic duty
- May disclose only if the victim's family requests information
Correct answer: Must keep the confession confidential under Rule 1.18 as a prospective client communication
Rule 1.18 protects information disclosed by a prospective client during a consultation, even if the attorney declines representation—past crimes are not within any disclosure exception.
Question 7: A lawyer is defending a client charged with drunk driving. The client tells the lawyer she has driven drunk many times before without being caught. The lawyer:
- Must disclose prior instances to the court as they affect the case
- Must keep this information confidential as it relates to the representation (Correct answer)
- May disclose to prevent future instances of drunk driving
- Must advise the client to self-report to the DMV
Correct answer: Must keep this information confidential as it relates to the representation
Confidential information about past conduct—even repeated illegal conduct—does not fall within Rule 1.6's exceptions, which address future harm not past crimes.
MPRE Confidentiality 4
An attorney's client is a limited liability company that is being wound down.
During winding up, the attorney learns that officers committed fraud during the company's operation.
Who controls the attorney-client privilege and confidentiality for the defunct entity?