MPRE Transactions with Non-Clients 4 — Questions and Answers
Question 1: An attorney uses a private investigator to gather information from a non-client who is involved in opposing litigation. The investigator misrepresents their identity to obtain the information. The attorney is:
- Not responsible because the investigator is an independent contractor
- Responsible only if the attorney instructed the investigator to misrepresent
- Responsible if the attorney ordered or ratified the investigator's misrepresentation (Correct answer)
- Not responsible because Rule 8.4 only applies to direct attorney conduct
Correct answer: Responsible if the attorney ordered or ratified the investigator's misrepresentation
A lawyer is responsible for the misconduct of agents ordered or ratified by the lawyer under Rule 8.4(a), which bars assisting another in violating the Rules.
Question 2: A lawyer for a creditor sends communications to the debtor (non-client) that are designed to embarrass or harass the debtor. This conduct:
- Is permitted as zealous advocacy for the client
- Violates Rule 4.4, which prohibits means that serve only to embarrass third parties (Correct answer)
- Is permitted if the client specifically instructs such communication
- Only violates the Fair Debt Collection Practices Act, not the Rules of Professional Conduct
Correct answer: Violates Rule 4.4, which prohibits means that serve only to embarrass third parties
Rule 4.4(a) prohibits a lawyer from using means that have no substantial purpose other than to embarrass, delay, or burden a third person.
Question 3: A lawyer settles a client's case and the settlement funds arrive in the lawyer's trust account. A non-client third party asserts a valid lien on the funds. The lawyer must:
- Disburse the funds to the client immediately and let the client resolve the lien
- Hold the disputed portion in trust until the lien dispute is resolved (Correct answer)
- Return all funds to the opposing party pending the lien resolution
- Immediately interplead the funds into court without notifying the client
Correct answer: Hold the disputed portion in trust until the lien dispute is resolved
Rule 1.15 requires a lawyer to hold funds subject to a third-party claim in trust until the dispute is resolved by agreement, court order, or other means.
Question 4: A lawyer is contacted directly by a person who is represented by another lawyer regarding the same matter. The lawyer should:
- Speak with the represented person only to obtain their consent to proceed
- Decline to communicate with the represented person without consent of their counsel (Correct answer)
- Communicate with the represented person if they initiate the contact
- Request a court order before speaking with the represented person
Correct answer: Decline to communicate with the represented person without consent of their counsel
Rule 4.2 generally prohibits communication with a represented person about the subject of the representation without prior consent of their counsel, even if that person initiates contact.
Question 5: A government lawyer investigating a corporation wants to interview employees of the corporation without notifying corporate counsel. Under Rule 4.2, the lawyer:
- May interview any employee as long as Miranda rights are given
- Must always obtain prior consent of corporate counsel before any employee contact
- May contact lower-level employees who are not in a supervisory role without prior consent (Correct answer)
- Is exempt from Rule 4.2 because government lawyers are not subject to it
Correct answer: May contact lower-level employees who are not in a supervisory role without prior consent
The 'no-contact' rule for represented organizations generally allows contact with lower-level employees not involved in the matter or whose conduct is not imputed to the corporation, but bars contact with managerial employees absent consent.
Question 6: A lawyer's client wants to make a business offer to a third party. The third party is unrepresented. In presenting the offer, the lawyer must NOT:
- Identify themselves as the client's lawyer
- State the terms of the offer as drafted by the client
- Imply that the lawyer is acting as a neutral intermediary when they are not (Correct answer)
- Advise the third party to obtain independent counsel
Correct answer: Imply that the lawyer is acting as a neutral intermediary when they are not
Under Rules 4.1 and 4.3, a lawyer may not create a false impression about their role; misrepresenting neutrality to an unrepresented party is prohibited.
Question 7: A prospective client meets with a lawyer and discloses confidential information, but the lawyer decides not to take the case. Later, a former client with adverse interests seeks to retain the lawyer. The lawyer:
- May freely represent the former client because no attorney-client relationship existed
- Must disclose the prospective client's information to the new client
- May be barred from representing the new client if the information is significantly harmful (Correct answer)
- Is required to represent the new client to avoid a conflict of interest
Correct answer: May be barred from representing the new client if the information is significantly harmful
Rule 1.18 protects prospective clients' confidences, and a lawyer who received significantly harmful information from a prospective client may be disqualified from representing adverse parties in the same matter.
MPRE Transactions with Non-Clients 4
An attorney uses a private investigator to gather information from a non-client who is involved in opposing litigation.
The investigator misrepresents their identity to obtain the information.
The attorney is: