OK Bar Professional Responsibility — Questions and Answers
Question 1: Attorney Ann represents Client X in a contract dispute against Company Y. During representation, Ann learns highly confidential information about X's financial weaknesses. After the matter concludes, Company Y asks Ann to represent it in a new, unrelated trademark matter. Under the Model Rules of Professional Conduct, Ann:
- May represent Company Y without restriction because the new matter is unrelated to the prior representation of X
- Must decline unless she obtains informed written consent from X, because the prior representation creates a conflict under Rule 1.9 (Correct answer)
- Must decline outright and cannot represent Company Y even with consent, because she possesses X's confidential information
- May represent Company Y only if she discloses X's confidential information to Company Y to ensure fairness
Correct answer: Must decline unless she obtains informed written consent from X, because the prior representation creates a conflict under Rule 1.9
MRPC Rule 1.9 governs duties to former clients. An attorney may not represent a new client in a matter materially adverse to a former client's interests if the matters are the same or substantially related. Here the matters are unrelated, so Rule 1.9(a) does not bar representation; however, Rule 1.9(c) forbids using or revealing the former client's confidential information to his disadvantage. Ann may proceed if she screens the confidential information and X consents — but outright prohibition without consent analysis misstates the rule.
Question 2: Attorney Ben is representing two co-defendants in a criminal case. During preparation, Ben discovers that their defenses conflict — one defendant would benefit from blaming the other. Under MRPC Rule 1.7, Ben should:
- Continue representing both clients because joint representation is always permissible in criminal cases
- Withdraw from representing both clients because a concurrent conflict of interest exists that cannot be waived in a criminal case where the defendants' defenses are directly adverse (Correct answer)
- Obtain informed written consent from both clients and continue if he reasonably believes he can represent both competently and diligently
- Disclose the conflict only to the court and seek a judicial ruling on whether to continue
Correct answer: Withdraw from representing both clients because a concurrent conflict of interest exists that cannot be waived in a criminal case where the defendants' defenses are directly adverse
MRPC Rule 1.7(b) allows representation despite a conflict if the lawyer reasonably believes he can represent both competently AND each client gives informed written consent. However, Comment 23 to Rule 1.7 notes that in criminal cases, when co-defendants' defenses are directly adverse, the conflict is generally not consentable because the risk of impaired representation is too high. Ben must withdraw from representing at least one, and likely both.
Question 3: During trial, Attorney Carol learns that her client, who testified earlier, gave false testimony. The client refuses to correct the false statement. Under MRPC Rule 3.3 (Candor Toward the Tribunal), Carol must:
- Do nothing, because her duty of confidentiality to her client overrides her duty of candor to the court
- Immediately disclose the false testimony to the opposing party so they can respond
- Take reasonable remedial measures, including, if necessary, disclosing the false testimony to the tribunal, even if this requires revealing otherwise confidential information (Correct answer)
- Move for a mistrial so the client can start over with new counsel
Correct answer: Take reasonable remedial measures, including, if necessary, disclosing the false testimony to the tribunal, even if this requires revealing otherwise confidential information
MRPC Rule 3.3(a)(3) prohibits a lawyer from offering false evidence and requires the lawyer to take reasonable remedial measures if false material evidence has been offered. Under Rule 3.3(b) and (c), the duty of candor to the tribunal overrides the duty of confidentiality under Rule 1.6 when the client has given false testimony and refuses to correct it. Disclosure to the tribunal — not the opposing party — is the required remedy.
Question 4: A prospective client consults Attorney Dan about a potential negligence claim but ultimately retains a different lawyer. Later, Dan is asked to represent the defendant in the same lawsuit. Under MRPC Rule 1.18, Dan:
- May represent the defendant freely because no attorney-client relationship was ever formed with the prospective client
- May not represent the defendant if the prospective client shared information that could be significantly harmful to her in the matter, unless she consents or timely screening is implemented (Correct answer)
- Must obtain court approval before representing the defendant in any matter the prospective client discussed with him
- May represent the defendant only after a six-month waiting period following the consultation
Correct answer: May not represent the defendant if the prospective client shared information that could be significantly harmful to her in the matter, unless she consents or timely screening is implemented
MRPC Rule 1.18 protects prospective clients. Even though no attorney-client relationship formed, a lawyer who received information that could be 'significantly harmful' to the prospective client may not represent an adverse party in the same or substantially related matter — unless the prospective client consents or the lawyer is timely and effectively screened from the representation and written notice is given to the prospective client.
Question 5: Attorney Emily settles a personal injury case for her client and receives a $100,000 settlement check made out to Emily's client. Emily has an outstanding $5,000 fee owed to her from the client. Under MRPC Rule 1.15, Emily should:
- Deposit the $100,000 into her operating account and write a check to the client for $95,000
- Deposit the full $100,000 into her client trust account, promptly notify and disburse $95,000 to the client, and withdraw her $5,000 fee only after the client's portion is disbursed (Correct answer)
- Hold the full $100,000 in trust until the client agrees to the fee arrangement in writing
- Cash the check and pay the client $95,000 in cash to avoid commingling issues
Correct answer: Deposit the full $100,000 into her client trust account, promptly notify and disburse $95,000 to the client, and withdraw her $5,000 fee only after the client's portion is disbursed
MRPC Rule 1.15 requires lawyers to promptly deposit client funds in a separate client trust account (IOLTA), notify the client of receipt, promptly deliver funds the client is entitled to, and keep complete records. The lawyer may not commingle client funds with personal funds. Emily must deposit the full amount in trust, disburse the client's $95,000 promptly, and withdraw her earned fee only after proper accounting — not before disbursing the client's share.
Question 6: Attorney Frank is approached by a journalist who asks about the strengths of his client's criminal defense case. The client has not consented to any disclosure. Frank says, 'My client is definitely going to win — the prosecution's key witness is completely unreliable.' This statement most likely violates which Model Rule?
- Rule 1.6 only, because Frank disclosed confidential information without consent
- Rule 3.6, because Frank made an extrajudicial statement that has a substantial likelihood of materially prejudicing the proceeding (Correct answer)
- Rule 8.4, because Frank made a false statement of fact to a third party
- Rule 3.4, because Frank is improperly influencing a witness
Correct answer: Rule 3.6, because Frank made an extrajudicial statement that has a substantial likelihood of materially prejudicing the proceeding
MRPC Rule 3.6 prohibits a lawyer from making extrajudicial statements that the lawyer knows or reasonably should know will be disseminated publicly and have a substantial likelihood of materially prejudicing a pending proceeding. Commenting on witness credibility to the press during a pending criminal case is a classic example. Rule 1.6 may also be implicated, but Rule 3.6 is the most directly on-point rule for trial publicity.
OK Bar Professional Responsibility
Attorney Ann represents Client X in a contract dispute against Company Y.
During representation, Ann learns highly confidential information about X's financial weaknesses.
After the matter concludes, Company Y asks Ann to represent it in a new, unrelated trademark matter.
Under the Model Rules of Professional Conduct, Ann: