OH Bar Multistate Professional Responsibility 3 — Questions and Answers
Question 1: A lawyer's former client sues a new prospective client on a matter substantially related to the prior representation. The lawyer may represent the new client only if:
- The lawyer reasonably believes no confidences will be used
- Five years have passed since the prior representation ended
- The former client gives informed consent, confirmed in writing (Correct answer)
- The new client waives all claims of conflict
Correct answer: The former client gives informed consent, confirmed in writing
Rule 1.9 bars representation materially adverse to a former client in a substantially related matter unless the former client gives informed consent confirmed in writing.
Question 2: A lawyer advertises 'No fee unless you win!' for personal injury cases but does not mention that clients remain liable for court costs. This advertisement is:
- Proper because contingent fees are permitted in personal injury cases
- Misleading and improper because omitting the client's liability for costs makes the statement materially deceptive (Correct answer)
- Proper because costs are not fees
- Improper because contingent fee arrangements may never be advertised
Correct answer: Misleading and improper because omitting the client's liability for costs makes the statement materially deceptive
Under Rule 7.1, an advertisement is misleading if it omits a fact necessary to make the statement as a whole not materially misleading, such as liability for costs.
Question 3: During trial, a lawyer states in closing argument, 'I personally believe my client is innocent and the police officer lied.' This statement is:
- Proper, because closing argument allows wide latitude
- Proper, because the lawyer sincerely believed it
- Improper only if the jury was actually influenced
- Improper, because a lawyer may not assert personal opinions about a witness's credibility or a party's guilt or innocence (Correct answer)
Correct answer: Improper, because a lawyer may not assert personal opinions about a witness's credibility or a party's guilt or innocence
Rule 3.4(e) prohibits a lawyer from asserting personal knowledge of facts in issue or personal opinions about credibility, culpability, or guilt.
Question 4: A lawyer receives a document from opposing counsel that was clearly sent by mistake and contains privileged information. Under the Model Rules, the lawyer must:
- Promptly notify the sender (Correct answer)
- Return the document unread and destroy all copies
- Read and use the document because the privilege was waived
- Report opposing counsel to the disciplinary board
Correct answer: Promptly notify the sender
Rule 4.4(b) requires only that a lawyer who knows a document was inadvertently sent promptly notify the sender; further steps are governed by other law.
Question 5: A client asks her lawyer whether she can shred old business records. The records are not currently sought in any proceeding, and no litigation is pending or anticipated. The lawyer advises that shredding is lawful. Has the lawyer acted properly?
- No, because advising document destruction always obstructs justice
- No, because business records must be retained for seven years
- Yes, because a lawyer may advise on the lawful destruction of documents when no proceeding is pending or reasonably foreseeable (Correct answer)
- Yes, but only if the lawyer supervises the shredding personally
Correct answer: Yes, because a lawyer may advise on the lawful destruction of documents when no proceeding is pending or reasonably foreseeable
Advising lawful destruction of documents is proper when no litigation or investigation is pending or reasonably anticipated, since Rule 3.4(a) applies to material with potential evidentiary value.
Question 6: A lawyer serving as a third-party neutral in a mediation later is asked to represent one of the mediation parties in the same matter. The lawyer may do so only if:
- The other party is now represented by counsel
- All parties to the mediation give informed consent, confirmed in writing (Correct answer)
- The mediation ended more than one year ago
- The lawyer discloses all information learned during mediation
Correct answer: All parties to the mediation give informed consent, confirmed in writing
Rule 1.12 prohibits a former third-party neutral from representing anyone in the same matter unless all parties give informed consent confirmed in writing.
Question 7: A lawyer is convicted of felony tax evasion unrelated to her practice. She argues she cannot be disciplined because the crime did not involve a client. Is she correct?
- Yes, because discipline extends only to conduct in representing clients
- Yes, because tax matters are civil in nature
- No, but only because all felonies result in automatic disbarment
- No, because a criminal act reflecting adversely on honesty, trustworthiness, or fitness is professional misconduct even outside practice (Correct answer)
Correct answer: No, because a criminal act reflecting adversely on honesty, trustworthiness, or fitness is professional misconduct even outside practice
Rule 8.4(b) makes it misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness, regardless of any client connection.
OH Bar Multistate Professional Responsibility 3
A lawyer's former client sues a new prospective client on a matter substantially related to the prior representation.
The lawyer may represent the new client only if: