MPRE Confidentiality 5 — Questions and Answers
Question 1: A lawyer is negotiating a settlement on behalf of a client and the opposing party's attorney asks: 'Does your client have insurance coverage for this claim?' The client has told the lawyer to deny coverage. Under the Model Rules, the attorney:
- Must deny coverage per the client's instruction
- May not make a false statement of fact and should decline to answer or withdraw (Correct answer)
- May deny coverage because settlement negotiations are not 'proceedings'
- Must disclose the insurance because it is material to settlement
Correct answer: May not make a false statement of fact and should decline to answer or withdraw
Rule 4.1 prohibits lawyers from making false statements of material fact to third parties, even in negotiations and even on client instruction.
Question 2: Under the Model Rules, which of the following is the BEST description of what 'information relating to the representation' means for purposes of Rule 1.6?
- Only communications directly between attorney and client
- Only information the client specifically marked as confidential
- All information gained in or relating to the representation, whatever its source (Correct answer)
- Only information that would harm the client if disclosed
Correct answer: All information gained in or relating to the representation, whatever its source
Rule 1.6 Comment [3] defines protected information broadly as all information relating to the representation, regardless of source or whether it would harm the client if disclosed.
Question 3: A client authorizes her attorney to disclose confidential information to a mediator during a confidential mediation session. After mediation fails, the opposing party seeks to depose the mediator about what was disclosed. The attorney's confidentiality obligation:
- Ended when the client consented to disclosure to the mediator
- Continues and the attorney should object to any unauthorized further disclosure (Correct answer)
- Is now controlled by mediation confidentiality rules only
- No longer applies because the information was shared with a third party
Correct answer: Continues and the attorney should object to any unauthorized further disclosure
Client consent to disclose information in a specific context (mediation) does not constitute blanket waiver; the attorney must still protect the information from further unauthorized disclosure.
Question 4: A solo practitioner dies unexpectedly. Under the Model Rules, which obligation regarding client confidentiality applies to the attorney's estate and successor counsel?
- All client files immediately become public record upon the attorney's death
- Successor counsel must maintain confidentiality and protect client interests in winding down (Correct answer)
- Client files must be destroyed immediately to protect confidentiality
- The duty of confidentiality transfers to the attorney's heirs
Correct answer: Successor counsel must maintain confidentiality and protect client interests in winding down
Rule 1.3 Comment [5] and Rule 1.6 require that attorneys make arrangements for someone to wind down their practice in a manner that protects client confidences if they become incapacitated or die.
Question 5: A client sues her former attorney for malpractice. The attorney wishes to disclose confidential client communications to defend himself. Under the Model Rules, the attorney:
- May not disclose any confidential information even in self-defense
- May disclose confidential information to the extent reasonably necessary to defend against the claim (Correct answer)
- Must seek court permission before disclosing any confidential information
- May disclose only to his own attorney, not in court proceedings
Correct answer: May disclose confidential information to the extent reasonably necessary to defend against the claim
Rule 1.6(b)(5) permits disclosure of confidential information to the extent necessary to establish a defense in a controversy with the client.
Question 6: A lawyer is retained to represent a client in a divorce. The client's spouse, unrepresented, calls the lawyer and volunteers information about marital assets. Under Rule 1.6, this information:
- Is not confidential because it came from a third party adverse to the client
- Relates to the representation and is subject to confidentiality obligations (Correct answer)
- Must be disclosed to the court because it came from a non-client
- Is protected by attorney-client privilege but not Rule 1.6 confidentiality
Correct answer: Relates to the representation and is subject to confidentiality obligations
Rule 1.6 protects all information relating to the representation regardless of its source, including information received from adverse third parties.
Question 7: A state bar's ethics hotline attorney advises a lawyer over the phone about whether certain conduct would violate the Rules. In seeking the advice, the lawyer discloses confidential client information. Under the Model Rules:
- This disclosure violates Rule 1.6 because ethics hotlines are not authorized recipients
- This disclosure is permitted under Rule 1.6(b)(4) to secure legal advice about compliance with the Rules (Correct answer)
- This disclosure requires prior client consent because it involves a third party
- This disclosure is only permissible if the client's identity is not revealed
Correct answer: This disclosure is permitted under Rule 1.6(b)(4) to secure legal advice about compliance with the Rules
Rule 1.6(b)(4) explicitly permits disclosure of confidential information to obtain legal advice about the lawyer's own compliance with the Rules of Professional Conduct.
MPRE Confidentiality 5
A lawyer is negotiating a settlement on behalf of a client and the opposing party's attorney asks: 'Does your client have insurance coverage for this claim?' The client has told the lawyer to deny coverage.
Under the Model Rules, the attorney: