MPRE Transactions with Non-Clients 5 — Questions and Answers
Question 1: A lawyer discovers that opposing counsel inadvertently sent a privileged memo to the lawyer via email. Under Rule 4.4(b), the lawyer must:
- Immediately destroy the email and notify the court
- Promptly notify the sending lawyer of the inadvertent disclosure (Correct answer)
- Use the memo freely because it was voluntarily sent
- Ask the client whether to use the information before notifying anyone
Correct answer: Promptly notify the sending lawyer of the inadvertent disclosure
Rule 4.4(b) requires a lawyer who receives inadvertently sent documents to promptly notify the sender, regardless of whether the lawyer reads them first.
Question 2: A lawyer is retained to help a client structure a transaction. The lawyer later determines that the transaction's primary purpose is to defraud a non-client creditor. The lawyer must:
- Complete the transaction because the lawyer's obligation is solely to the client
- Refuse to assist and, if necessary, withdraw from the representation (Correct answer)
- Warn the creditor before completing the transaction
- Disclose the fraud to the IRS to qualify for a whistleblower exemption
Correct answer: Refuse to assist and, if necessary, withdraw from the representation
A lawyer may not assist a client in conduct the lawyer knows is fraudulent or criminal, and must withdraw if the client insists on proceeding.
Question 3: Under the MPRE, a lawyer who deals with a represented opposing party's non-lawyer agent (e.g., a claims adjuster) without counsel's consent:
- Violates Rule 4.2 because the agent speaks for the represented party
- Does not violate Rule 4.2 because the agent is not the represented party (Correct answer)
- Violates Rule 4.3 by failing to advise the agent to obtain counsel
- Does not violate any rule provided the agent consents in writing
Correct answer: Does not violate Rule 4.2 because the agent is not the represented party
Rule 4.2 protects the represented party themselves; communication with the party's non-lawyer agents generally does not violate Rule 4.2 unless the agent has authority to bind the party.
Question 4: An attorney negotiating on behalf of a client overstates the strength of the client's legal position to the unrepresented opposing party. This is:
- A violation of Rule 4.1 because it is a false statement of material fact
- Permitted because puffery and legal opinions are not 'facts' under Rule 4.1 (Correct answer)
- A violation of Rule 3.3 because it misleads a tribunal
- Permitted only if the opposing party is also represented by counsel
Correct answer: Permitted because puffery and legal opinions are not 'facts' under Rule 4.1
Under Rule 4.1 Comment 2, statements of a party's negotiating position or legal opinion are generally not treated as statements of 'fact,' so overstatement of legal strength is not a Rule 4.1 violation.
Question 5: A lawyer for a plaintiff sends a subpoena to a non-party witness requiring document production. The witness (non-client) objects that the subpoena is unduly burdensome. The lawyer must:
- Ignore the objection because the subpoena was properly issued
- Take reasonable steps to avoid imposing undue burden on the non-party (Correct answer)
- Withdraw the subpoena immediately upon any objection
- Seek the court's permission before issuing subpoenas to non-parties
Correct answer: Take reasonable steps to avoid imposing undue burden on the non-party
Rule 4.4(a) requires a lawyer to take reasonable steps to avoid imposing undue burden on third persons, even when pursuing legitimate discovery objectives.
Question 6: A lawyer is authorized by the client to settle a claim. During settlement negotiations with the unrepresented claimant, the lawyer misrepresents that the client has limited insurance coverage. This violates:
- No rule, because settlement negotiations are exempt from candor requirements
- Rule 4.1, because coverage limits are a material fact relevant to the negotiation (Correct answer)
- Rule 1.4 only, because the lawyer failed to keep the client informed
- Rule 3.4 only, because the misrepresentation relates to evidence
Correct answer: Rule 4.1, because coverage limits are a material fact relevant to the negotiation
Insurance coverage limits are material facts in a settlement negotiation, and misrepresenting them to a third party violates Rule 4.1's prohibition on false statements of material fact.
Question 7: A lawyer representing a defendant in a civil case wants to have an investigator interview the plaintiff's treating physician without the plaintiff's attorney's knowledge. Under Rule 4.2, this is:
- Permitted because the physician is a fact witness, not a represented party (Correct answer)
- Prohibited because the physician's testimony could harm the plaintiff
- Permitted if the physician consents and the information is not privileged
- Prohibited unless the court orders the interview in discovery
Correct answer: Permitted because the physician is a fact witness, not a represented party
The treating physician is a non-party witness, not a represented party; Rule 4.2 does not bar contact with non-party witnesses, though other rules (e.g., privilege, Rule 4.4) may apply.
MPRE Transactions with Non-Clients 5
A lawyer discovers that opposing counsel inadvertently sent a privileged memo to the lawyer via email.
Under Rule 4.4(b), the lawyer must: