MPRE Transactions with Non-Clients 3 — Questions and Answers
Question 1: A lawyer representing a defendant in litigation wants to contact witnesses who are employees of the plaintiff corporation. Under Rule 4.2, the lawyer:
- May contact any employee of the corporation without restriction
- May only contact employees not involved in the subject of the litigation
- Must obtain consent of the corporation's counsel before contacting managerial employees (Correct answer)
- Is barred from contacting all employees regardless of their role
Correct answer: Must obtain consent of the corporation's counsel before contacting managerial employees
Rule 4.2 bars ex parte contact with represented organization members whose acts may be imputed to the organization or who supervise the matter without consent of the organization's counsel.
Question 2: A lawyer learns from a client that the client's business partner (not a party to any lawsuit) is about to fraudulently transfer assets to evade a creditor. The lawyer may:
- Warn the creditor directly to prevent the fraud
- Advise the client on the legal consequences and whether to proceed (Correct answer)
- File an emergency injunction on behalf of the creditor
- Disclose the fraud to the state bar immediately
Correct answer: Advise the client on the legal consequences and whether to proceed
The lawyer may counsel the client about the legal ramifications of the partner's planned fraud but cannot unilaterally warn third parties without client consent or a permitted disclosure exception.
Question 3: An attorney is assisting a client in what the attorney reasonably believes will constitute a crime. The attorney discovers mid-representation that the client's instructions will harm a third-party non-client. The attorney must:
- Continue representation and warn the third party
- Withdraw if continued assistance would violate the Rules of Professional Conduct (Correct answer)
- Complete the transaction and report the client to the bar afterward
- Seek a court order before withdrawing
Correct answer: Withdraw if continued assistance would violate the Rules of Professional Conduct
A lawyer must withdraw when continued representation would require the lawyer to assist in conduct that violates the Rules of Professional Conduct, including facilitating crimes that harm third parties.
Question 4: A lawyer conducting due diligence for a client discovers that the target company has made material misrepresentations to third-party investors. The lawyer's obligations include:
- Immediately disclosing the misrepresentations to the investors
- Advising the client of the discovered misrepresentations and their legal implications (Correct answer)
- Reporting the misrepresentations directly to the SEC without client consent
- Withdrawing from the representation and notifying the target company
Correct answer: Advising the client of the discovered misrepresentations and their legal implications
A lawyer must advise the client of discovered legal issues but generally cannot disclose to third parties without the client's consent unless an exception applies.
Question 5: A lawyer sends a collection letter to a non-client debtor containing a false threat that a lawsuit will be filed immediately when in fact no such lawsuit is planned. This violates:
- No rule, because collection letters are not covered by the Rules of Professional Conduct
- Rule 4.1, which prohibits false statements of material fact to third parties (Correct answer)
- Rule 3.3, which requires candor toward the tribunal
- Rule 1.6, which prohibits disclosure of client information
Correct answer: Rule 4.1, which prohibits false statements of material fact to third parties
Rule 4.1 prohibits a lawyer from knowingly making false statements of material fact to third persons, including in collection correspondence.
Question 6: Which of the following best describes when a lawyer may give legal advice to an unrepresented person on the other side of a transaction?
- Never; any advice to an adverse unrepresented party is prohibited
- Only to advise the person to obtain independent counsel (Correct answer)
- Whenever doing so benefits both the client and the unrepresented person
- Whenever the unrepresented person requests it in writing
Correct answer: Only to advise the person to obtain independent counsel
Rule 4.3 limits a lawyer's advice to an unrepresented adverse party to recommending that the person obtain independent legal counsel.
Question 7: A lawyer representing a lender in a mortgage transaction is also asked by the unrepresented borrower to review the loan documents on the borrower's behalf. The lawyer should:
- Agree, because reviewing documents does not create an attorney-client relationship
- Agree, provided the lawyer charges the borrower a separate fee
- Decline and advise the borrower to obtain independent counsel (Correct answer)
- Agree but disclose to the lender that the lawyer is also advising the borrower
Correct answer: Decline and advise the borrower to obtain independent counsel
Representing both the lender and borrower in the same transaction would create a conflict of interest, and Rule 4.3 requires the lawyer to advise the unrepresented borrower to get separate counsel.
MPRE Transactions with Non-Clients 3
A lawyer representing a defendant in litigation wants to contact witnesses who are employees of the plaintiff corporation.
Under Rule 4.2, the lawyer: