VT Bar Professional Responsibility 3 — Questions and Answers
Question 1: A client tells his attorney in confidence that he plans to commit fraud that will cause substantial financial harm to a third party. Under MR 1.6(b)(2), the attorney:
- May (but is not required to) reveal the information to prevent the fraud (Correct answer)
- Must reveal the information to prevent the fraud
- May not reveal the information under any circumstance
- Must withdraw but may not reveal the information
Correct answer: May (but is not required to) reveal the information to prevent the fraud
MR 1.6(b)(2) is permissive, not mandatory—the lawyer may disclose to prevent reasonably certain substantial financial harm involving the client's crime or fraud, but is not required to.
Question 2: A client is suing her attorney for malpractice. The attorney wants to disclose confidential communications to defend herself. Under MR 1.6(b)(5), this disclosure is:
- Permitted to the extent reasonably necessary to establish a defense to the client's claim (Correct answer)
- Never permitted because the attorney-client privilege protects the client
- Permitted only with court authorization
- Permitted only if the client first waives the privilege
Correct answer: Permitted to the extent reasonably necessary to establish a defense to the client's claim
MR 1.6(b)(5) allows an attorney to reveal confidential information to the extent necessary to defend against a client's claim in a proceeding.
Question 3: Which of the following is the BROADEST protection under MR 1.6, compared to the common-law attorney-client privilege?
- MR 1.6 protects all information relating to the representation, not just privileged communications (Correct answer)
- MR 1.6 only protects confidential communications made in seeking legal advice
- MR 1.6 protection ends when the representation ends
- MR 1.6 does not protect information that is publicly available
Correct answer: MR 1.6 protects all information relating to the representation, not just privileged communications
Unlike the evidentiary privilege, MR 1.6's duty of confidentiality covers all information 'relating to the representation,' regardless of source or whether it is privileged.
Question 4: An attorney learns that her client, a corporation, has engaged in ongoing financial fraud. The attorney reports to the board of directors, which refuses to act. Under MR 1.13(c), the attorney:
- May reveal confidential information to the extent necessary to prevent substantial injury to the organization (Correct answer)
- Must immediately report the fraud to the SEC
- Must withdraw and may say nothing further
- Must report to the organization's audit committee before taking any other action
Correct answer: May reveal confidential information to the extent necessary to prevent substantial injury to the organization
MR 1.13(c) permits (but does not require) disclosure outside the organization when the highest authority fails to address a clear violation that causes substantial injury.
Question 5: A client dies during the pendency of litigation. What happens to the attorney-client privilege?
- The privilege survives death and may be asserted by the estate's representative (Correct answer)
- The privilege automatically terminates upon the client's death
- The privilege terminates only if the client had no heirs
- The privilege survives only for five years after death
Correct answer: The privilege survives death and may be asserted by the estate's representative
The attorney-client privilege survives the client's death and may be invoked by the personal representative of the estate.
Question 6: An attorney discovers mid-representation that her client has provided false evidence to the tribunal. The client refuses to correct it. Under MR 3.3, the attorney MUST:
- Take reasonable remedial measures, including if necessary disclosure to the tribunal (Correct answer)
- Withdraw immediately and file a disciplinary complaint
- Maintain confidentiality and take no action
- Notify opposing counsel of the false evidence
Correct answer: Take reasonable remedial measures, including if necessary disclosure to the tribunal
MR 3.3(a)(3) and (b) require the attorney to take reasonable remedial measures, up to and including disclosure to the tribunal, when a client has offered false evidence.
Question 7: Attorney learns that her client, currently on probation, has committed a new crime—a probation violation. Must the attorney report this to the probation officer?
- No, MR 1.6 confidentiality protects this information and no exception applies (Correct answer)
- Yes, because the attorney has a duty to prevent ongoing criminal activity
- Yes, but only if the new crime is a felony
- No, but the attorney must withdraw from representation
Correct answer: No, MR 1.6 confidentiality protects this information and no exception applies
The client's past crime is confidential information under MR 1.6, and no exception mandates disclosure of a completed act that does not involve imminent death or substantial financial harm.
VT Bar Professional Responsibility 3
A client tells his attorney in confidence that he plans to commit fraud that will cause substantial financial harm to a third party.
Under MR 1.6(b)(2), the attorney: