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Question 1
You represent Einstein in a civil battery suit against Oppenheimer. Oppenheimer intentionally lit an M-80 firework right in front of Einstein, so as to scare him a little. Einstein was not physically injured to a great extent, but was terribly hurt that his buddy Oppenheimer would commit such an indiscretion. On the day following the incident, you ring Oppenheimer's doorbell and ask him to tell his version of the story. Are you subject to discipline?
Correct
Incorrect!
Correct Generally, the 'no-contact' rule prohibiting direct contact with an adversary, is not triggered unless a lawyer knows that the adversary is represented by counsel. See Model Rule 4.4, Comment [5]. Actual knowledge, though, 'may be inferred from the circumstances'a lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.' Id. On the facts, you did not even attempt to discover whether Oppenheimer was represented by counsel. Therefore, there is at least a chance you could be subject to discipline, making choice (b) the best answer. Choice (a) is incorrect because it incorrectly states the no-contact rule, instead asserting that it is never appropriate to contact the adversary directly. The rule holds that you may not contact an adversary known to be represented by counsel --- without the permission of counsel. See Model Rule 4.4. Choice (c) is not relevant to whether you are entitled to visit Oppenheimer.
Incorrect! Generally, the 'no-contact' rule prohibiting direct contact with an adversary, is not triggered unless a lawyer knows that the adversary is represented by counsel. See Model Rule 4.4, Comment [5]. Actual knowledge, though, 'may be inferred from the circumstances'a lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.' Id. On the facts, you did not even attempt to discover whether Oppenheimer was represented by counsel. Therefore, there is at least a chance you could be subject to discipline, making choice (b) the best answer. Choice (a) is incorrect because it incorrectly states the no-contact rule, instead asserting that it is never appropriate to contact the adversary directly. The rule holds that you may not contact an adversary known to be represented by counsel --- without the permission of counsel. See Model Rule 4.4. Choice (c) is not relevant to whether you are entitled to visit Oppenheimer.
Correct
Incorrect!
Question 2
You represent Einstein in a civil battery suit against Oppenheimer. Einstein is suing Oppenheimer for lighting an M-80 firework, causing a little physical injury, and scaring Einstein to death. Einstein and Oppenheimer still have to work together, though, on some important lab task for the U.S. Government. They try to remain civil to each other throughout the legal proceeding, out of respect for the work they share. Their office decides to hold their annual Christmas party right outside Washington in Alexandria, VA, about a block from where you live. Einstein, kindly man, invites you to the Christmas party, thinking it would be a nice gesture. A few minutes after you arrive, you strike up a conversation with Oppenheimer about how beautiful everyone looks. Are you subject to discipline for contacting the adversary?
Correct
Incorrect!
Correct The 'no-contact' rule prohibiting a lawyer's direct contact with an adversary known to be represented by counsel is not triggered by discussions with the adversary on topics unrelated to the subject of the representation. See Model Rule 4.2. Therefore, choice (b) is the best answer. Choice (a) is incorrect in the context of a discussion unrelated to the subject of the representation. Choice (c) is incorrect because if you violated an ethics rule, even if Oppenheimer did not complain, that would not mean you would not be subject to discipline.
Incorrect! The 'no-contact' rule prohibiting a lawyer's direct contact with an adversary known to be represented by counsel is not triggered by discussions with the adversary on topics unrelated to the subject of the representation. See Model Rule 4.2. Therefore, choice (b) is the best answer. Choice (a) is incorrect in the context of a discussion unrelated to the subject of the representation. Choice (c) is incorrect because if you violated an ethics rule, even if Oppenheimer did not complain, that would not mean you would not be subject to discipline.
Correct
Incorrect!
Question 3
You represent John Hurt, the plaintiff in a personal injury action against a big corporation, In Case you Trip, Inc. Hurt claims that he fell off one of the defendant's cruise ships due to the defendant's negligence. You call one of the managers of the cruise ship on which Hurt was injured. The manager admits the crew failed to take certain precautions prior to the vessel's journey. But the general counsel for the corporation then calls you, screaming his head off, saying you had no right to interview his firm's management without his approval. Is he correct in this assertion?
Correct The 'no-contact' rule also may extend to corporations who are represented by counsel. Usually, the rules hold that anyone with managerial responsibilities may not be contacted directly by an adversary's lawyer, without consent. Also, anyone in the corporation whose words or admissions may impact on the corporation's liability in a suit should not be contacted directly by an opposing attorney without consent. See ABA Formal Opinion 91-359 (1991); see also Camden v. Maryland, 910 F. Supp 1115 (D. Md. 1996). As such, choice (a) is the best answer. You should have obtained permission from the general counsel before interviewing the manager, who would be entitled to make a binding admission on the company. Choice (b) is incorrect because you were not entitled to seek out the manager without permission. Choice (c) is incorrect because you do not have unlimited access to witnesses who might be able to make a binding admission for a company ' you need to obtain permission first.
Incorrect! The 'no-contact' rule also may extend to corporations who are represented by counsel. Usually, the rules hold that anyone with managerial responsibilities may not be contacted directly by an adversary's lawyer, without consent. Also, anyone in the corporation whose words or admissions may impact on the corporation's liability in a suit should not be contacted directly by an opposing attorney without consent. See ABA Formal Opinion 91-359 (1991); see also Camden v. Maryland, 910 F. Supp 1115 (D. Md. 1996). As such, choice (a) is the best answer. You should have obtained permission from the general counsel before interviewing the manager, who would be entitled to make a binding admission on the company. Choice (b) is incorrect because you were not entitled to seek out the manager without permission. Choice (c) is incorrect because you do not have unlimited access to witnesses who might be able to make a binding admission for a company ' you need to obtain permission first.
Correct
Incorrect!
Correct
Incorrect!
Question 4
You represent Wanda Toscanini in her divorce from Vladimir Horowitz. Horowitz refuses to retain counsel in the matter he believes that lawyers just want to ruin his life. Horowitz tells you in a negotiation that he's willing to cooperate with whatever you ask for, because he's had enough of Wanda and her antics. Horowitz asks for advice on what exactly he needs to do to make the divorce final. You provide some suggestions, and he is grateful. Are you subject to discipline?
Correct
Incorrect!
Correct
Incorrect!
Correct Providing advice to an unrepresented person while you are acting as counsel for another client ' especially the person's adversary ' is a violation of Model Rule 4.3. The only advice you can provide an unrepresented person in this case is to retain his own lawyer. Therefore, choice (c) is the best answer. The fact that Horowitz is not represented makes it easier for you to manipulate him. Therefore the ethical rules are strict when it comes to providing advice to unrepresented persons. As such, choice (a) is incorrect. Choice (b) is not relevant to the ethical prohibition on providing advice to an unrepresented adversary.
Incorrect! Providing advice to an unrepresented person while you are acting as counsel for another client ' especially the person's adversary ' is a violation of Model Rule 4.3. The only advice you can provide an unrepresented person in this case is to retain his own lawyer. Therefore, choice (c) is the best answer. The fact that Horowitz is not represented makes it easier for you to manipulate him. Therefore the ethical rules are strict when it comes to providing advice to unrepresented persons. As such, choice (a) is incorrect. Choice (b) is not relevant to the ethical prohibition on providing advice to an unrepresented adversary.
Question 5
Claude Debussy is suing Maurice Ravel for various copyright violations. Ravel in turn sues Debussy on the same theory. Debussy's lawyer, Arnold Schoenberg, has apparently been delinquent. Schoenberg doesn't even return Debussy's calls. Debussy thinks it is due to the fact that Schoenberg isn't really sympathetic to Debussy's case. Debussy approaches you, a respected county attorney, and tells you about his problems with Schoenberg. Debussy asks you whether or not you think his case is sound, and whether you would agree to take the case over from Schoenberg. Are you subject to discipline for engaging in the conversation?
Correct
Incorrect!
Correct
Incorrect!
Correct The no-contact rule does not apply when it comes to engaging in a discussion with a represented party who is dissatisfied with his lawyer. The goal of the no-contact rule is to prevent an outsider from harming the attorney-client relationship. If that relationship is not worth preserving, as in this case, then an outside attorney is entitled to engage in a discussion about the subject of representation with the represented client. Therefore, choice (c) is the best answer ' you are entitled to have a discussion with Debussy about his copyright case, because he is dissatisfied with Schoenberg's work. Choice (a) is incorrect, because you are not required to first notify Schoenberg about the discussion with his client. Choice (b) is not relevant to whether you are subject to discipline.
Incorrect! The no-contact rule does not apply when it comes to engaging in a discussion with a represented party who is dissatisfied with his lawyer. The goal of the no-contact rule is to prevent an outsider from harming the attorney-client relationship. If that relationship is not worth preserving, as in this case, then an outside attorney is entitled to engage in a discussion about the subject of representation with the represented client. Therefore, choice (c) is the best answer ' you are entitled to have a discussion with Debussy about his copyright case, because he is dissatisfied with Schoenberg's work. Choice (a) is incorrect, because you are not required to first notify Schoenberg about the discussion with his client. Choice (b) is not relevant to whether you are subject to discipline.
Question 6
Sonya Strook is involved in a car accident with Chris Khanbergh. You represent Sonya in her action against Chris. There were four witnesses to the accident, which occurred at a busy intersection. You contact one of the witnesses for some information about the accident. Are you subject to discipline?
Correct
Incorrect!
Correct
Incorrect!
Correct In most jurisdictions, communication with a represented person concerning the subject of the representation is prohibited without the consent of that person's counsel. Witnesses fall into that category only if they retain counsel to protect themselves in the case at bar. This is not evident here. Therefore, choice (b) is incorrect. On the facts, you would be entitled to interview a witness, whether or not you gain permission from the court or the witness's counsel. As such, choice (c) is the best answer. Choice (a) is an incorrect statement of the rule regarding contact with witnesses. Note that in New York State, you are always entitled to interview a witness without permission, whether or not she is represented by counsel, provided that witness is not a 'party' to the action.
Incorrect! In most jurisdictions, communication with a represented person concerning the subject of the representation is prohibited without the consent of that person's counsel. Witnesses fall into that category only if they retain counsel to protect themselves in the case at bar. This is not evident here. Therefore, choice (b) is incorrect. On the facts, you would be entitled to interview a witness, whether or not you gain permission from the court or the witness's counsel. As such, choice (c) is the best answer. Choice (a) is an incorrect statement of the rule regarding contact with witnesses. Note that in New York State, you are always entitled to interview a witness without permission, whether or not she is represented by counsel, provided that witness is not a 'party' to the action.
Question 7
You represent Sonya Strook in her civil action against Chris Kahnbergh. Chris rammed into Sonya at a busy intersection. Apparently, Chris ran a red light after the car in front of him ran a red. One of the witnesses to the accident had spoken with the police about what he saw. You want to interview him. When you call him, he tells you that he retained his own attorney in the matter because he wants to make sure he is not prosecuted for perjury. This guy is a real kook, you think to yourself. You figure you should interview him anyway, and you do so. Are you subject to discipline?
Correct If a prospective witness is known to a lawyer to be represented by counsel in the matter at hand, then the lawyer may not interview the witness without counsel's permission. That is the case here, and therefore choice (a) is the best answer. Choice (b) is an incorrect statement of the general rule. Choice (c) is irrelevant for purposes of evaluating whether or not a witness can be approached by an attorney. Note that in New York, if the witness is not a 'party' to the case, you would be entitled to interview him whether or not he is represented by counsel.
Incorrect! If a prospective witness is known to a lawyer to be represented by counsel in the matter at hand, then the lawyer may not interview the witness without counsel's permission. That is the case here, and therefore choice (a) is the best answer. Choice (b) is an incorrect statement of the general rule. Choice (c) is irrelevant for purposes of evaluating whether or not a witness can be approached by an attorney. Note that in New York, if the witness is not a 'party' to the case, you would be entitled to interview him whether or not he is represented by counsel.
Correct
Incorrect!
Correct
Incorrect!
Question 8
You are representing Mrs. Dorfmann in her divorce from Mr. Dorfmann. The biggest battle is over custody of their daughter, Rita. Both parties want full custody of Rita with absolutely no visitation rights for the adversary. Neither parent believes the other should be entitled to have any contact with Rita. You propose to have Mrs. Dorfmann's colleague testify as a character witness, and agree to pay the colleague a couple of hundred dollars to do so, to cover expenses and compensation for lost wages and time. Are you subject to discipline?
Correct
Incorrect!
Correct According to Model Rule 3.4, a non-expert witness may be paid for expenses reasonably incurred in attending the proceeding, and for compensation for time spent and for lost wages. Therefore, choice (b) is the best answer. Choice (c) is incorrect because expenses and lost wages may be covered by an attorney for a character witness ' although it is true that an expert witness may be paid a fee for his testimony, in addition to expenses. Choice (a) is incorrect because expenses and compensation for lost wages and time may be covered for a character witness.
Incorrect! According to Model Rule 3.4, a non-expert witness may be paid for expenses reasonably incurred in attending the proceeding, and for compensation for time spent and for lost wages. Therefore, choice (b) is the best answer. Choice (c) is incorrect because expenses and lost wages may be covered by an attorney for a character witness ' although it is true that an expert witness may be paid a fee for his testimony, in addition to expenses. Choice (a) is incorrect because expenses and compensation for lost wages and time may be covered for a character witness.
Correct
Incorrect!
Question 9
You are representing Mrs. Dorfmann in her divorce from Mr. Dorfmann. The biggest battle is over custody of their daughter, Rita. Both parties want full custody of Rita with absolutely no visitation rights for the adversary. Neither parent believes the other should be entitled to have any contact with Rita. You make an agreement with an expert psychologist to testify in the Dorfmann divorce case. The psychologist agrees to earn a fee if and only if your client, Mrs. Dorfmann, is satisfied with a custody award of her daughter Rita. If Mr. Dorfmann obtains custody of Rita, then the psychologist will not be paid. Are you subject to discipline for establishing this form of compensation?
Correct
Incorrect!
Correct
Incorrect!
Correct Almost all jurisdictions hold that hiring witnesses on contingent fees is a prohibited practice. This is because such a fee arrangement serves as an inducement to testify in a particular fashion. There are limited circumstances in very few jurisdictions in which consultants have been awarded contingent fees, but on the facts, this is not the case. Therefore, choice (c) is the best answer. Choice (a) is incorrect because while it is true expert witnesses may be paid a fee for their services, working on a contingent agreement is generally disallowed. Choice (b) is incorrect both because a psychologist generally may not testify on a contingency basis, and because psychology's controversial status as a science is irrelevant for purposes of the answer to this question.
Incorrect! Almost all jurisdictions hold that hiring witnesses on contingent fees is a prohibited practice. This is because such a fee arrangement serves as an inducement to testify in a particular fashion. There are limited circumstances in very few jurisdictions in which consultants have been awarded contingent fees, but on the facts, this is not the case. Therefore, choice (c) is the best answer. Choice (a) is incorrect because while it is true expert witnesses may be paid a fee for their services, working on a contingent agreement is generally disallowed. Choice (b) is incorrect both because a psychologist generally may not testify on a contingency basis, and because psychology's controversial status as a science is irrelevant for purposes of the answer to this question.
Question 10
You visit the factory where your client, Chuck Shortstamp, was injured in an industrial accident. Your intent is to interview witnesses to Chuck's accident. You approach three of his colleagues and begin to ask questions. All three gather around together and tell the story of Chuck's injury. At the conclusion of the discussion, you thank the men and leave the factory. You purposefully did not tell them you were Chuck's lawyer so as not to stir any fears. Are you subject to discipline?
Correct
Incorrect!
Correct According to Model Rule 4.3, a lawyer acting on behalf of her client has an obligation not to mislead a person unrepresented by counsel. If the lawyer does not make 'reasonable efforts to correct the misunderstanding' he is subject to discipline. See Model Rule 4.3. As such, your failure to discuss your role in the case as Chuck's attorney constitutes a violation of the ethical rules. Choice (a) might be true, but that does not mean you are entitled to lie or neglect to discuss your status as an investigating lawyer. Choice (c) says nothing about whether or not you committed an ethical violation.
Incorrect! According to Model Rule 4.3, a lawyer acting on behalf of her client has an obligation not to mislead a person unrepresented by counsel. If the lawyer does not make 'reasonable efforts to correct the misunderstanding' he is subject to discipline. See Model Rule 4.3. As such, your failure to discuss your role in the case as Chuck's attorney constitutes a violation of the ethical rules. Choice (a) might be true, but that does not mean you are entitled to lie or neglect to discuss your status as an investigating lawyer. Choice (c) says nothing about whether or not you committed an ethical violation.