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Question 1
Say your client, Kerry Fried Chicken, is suing a meat distributor for a breach of contract. The parties had reached an agreement regarding the sale of a number of tons of chicken meat. Your client is unhappy with the meat delivered. He wants you to argue that the meat delivered was clearly for boiling and stewing chickens, not for frying, and that the defendant breached the contract knowing that the chickens he delivered were unusable. Would it be frivolous to make such an argument?
Correct
Incorrect!
Correct A lawyer has an affirmative duty to make every reasonable argument available in representing a client. According to these facts, the defendant knew that your client sold fried chicken --- by sending boiling chickens he was not fulfilling your client's expectations according to the contract. If a lawyer believes with good faith that his argument is sound, based on the facts and the law, he is entitled to assert it. See Model Rule 3.1
Incorrect! A lawyer has an affirmative duty to make every reasonable argument available in representing a client. According to these facts, the defendant knew that your client sold fried chicken --- by sending boiling chickens he was not fulfilling your client's expectations according to the contract. If a lawyer believes with good faith that his argument is sound, based on the facts and the law, he is entitled to assert it. See Model Rule 3.1
Question 2
You represent Chop and Shop, a big supermarket defending itself in a personal injury suit brought by one of its customers. The customer testifies that he was walking down the "pets" aisle at the store when suddenly a 50-pound bag of dog food fell off a shelf and knocked him down. The customer claims his skull was fractured as a result of your client's negligence. In cross-examination, you try to elicit from the customer that he is a card-carrying member of the Americans for Nazis. The court sustains an objection to this line of questioning, but you press on, hoping to sway the jury's opinion with this information. Are you subject to discipline?
Correct A lawyer has a duty at trial not to allude to a frivolous issue that will not reasonably be supported by admissible evidence. See Model Rule 3.4. This case relates to a personal injury, not political affiliation. If the court finds your question unnecessarily prejudicial and misleading, it might discipline you with sanctions, citations, or a referral to a disciplinary committee. The court might also have to order a new trial.
Incorrect! A lawyer has a duty at trial not to allude to a frivolous issue that will not reasonably be supported by admissible evidence. See Model Rule 3.4. This case relates to a personal injury, not political affiliation. If the court finds your question unnecessarily prejudicial and misleading, it might discipline you with sanctions, citations, or a referral to a disciplinary committee. The court might also have to order a new trial.
Correct
Incorrect!
Question 3
You represent Caravaggio in a murder defense - he's been accused of killing Vermeer with a meat cleaver. Late in the trial you realize Caravaggio perjured himself. You tell Caravaggio he has to correct the record to reflect the truth. He refuses. You want to withdraw but the court won't grant you leave to do so, this late in the trial. Do you tell the court about the perjury?
Correct When a defense lawyer in a criminal trial realizes late in the trial that his client has perjured himself, the Model Rules provide that the lawyer must first try to convince the client to correct the record, and then try to withdraw if the client refuses. If withdrawal is not an option, the lawyer is obligated to tell the court. See Model Rule 3.3(a)(2), Comment [1]. While a defendant has the right to counsel, and a right to testify, there is no 'right to assistance of counsel in committing perjury.' See Model Rule 3.3 Comment [10].
Incorrect! When a defense lawyer in a criminal trial realizes late in the trial that his client has perjured himself, the Model Rules provide that the lawyer must first try to convince the client to correct the record, and then try to withdraw if the client refuses. If withdrawal is not an option, the lawyer is obligated to tell the court. See Model Rule 3.3(a)(2), Comment [1]. While a defendant has the right to counsel, and a right to testify, there is no 'right to assistance of counsel in committing perjury.' See Model Rule 3.3 Comment [10].
Correct
Incorrect!
Question 4
You represent Caravaggio in a murder defense - he's been accused of killing Vermeer with a meat cleaver. Caravaggio wants to testify. While you question Caravaggio on the stand, you stammer a bit. You're not sure, but you think he might be lying to the jury about the death of Vermeer. Do you tell the court about his possible perjury?
Correct
Incorrect!
Correct A lawyer who isn't sure about the veracity of his client's testimony may still offer it into evidence. The jury is responsible for deciding the truthfulness of the testimony. The situation would be different if you had a 'reasonable basis' for believing the testimony constituted perjury. In that case, a lawyer is entitled to refuse to offer the testimony. See Model Rule 3.3(c). Here, since you only have a feeling your client is not telling the truth, without any proof, there is nothing of substance to report to the tribunal.
Incorrect! A lawyer who isn't sure about the veracity of his client's testimony may still offer it into evidence. The jury is responsible for deciding the truthfulness of the testimony. The situation would be different if you had a 'reasonable basis' for believing the testimony constituted perjury. In that case, a lawyer is entitled to refuse to offer the testimony. See Model Rule 3.3(c). Here, since you only have a feeling your client is not telling the truth, without any proof, there is nothing of substance to report to the tribunal.
Question 5
You represent Snoopy Dogg in his invasion of privacy suit against Kew Tipp. The jury finds for Snoopy and the court enters the verdict, ending the trial. A week later at a raucous celebratory dinner, Snoopy tells you he lied before and during the trial his evidence was falsified. You are shocked and worry for your own career. You're not sure whether you should go to the judge on your case and disclose what you just learned from Snoopy himself. Do you tell the court?
Correct
Incorrect!
Correct Following a trial or proceeding, a lawyer's obligation to cure the presentation of false evidence ends. According to the Model Rules, 3.3 Comment [13], 'A practical time limit on the obligation to rectify the presentation of false evidence has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation.' As such, you are not, based on these facts required to tell the court about Snoopy's falsifications.
Incorrect! Following a trial or proceeding, a lawyer's obligation to cure the presentation of false evidence ends. According to the Model Rules, 3.3 Comment [13], 'A practical time limit on the obligation to rectify the presentation of false evidence has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation.' As such, you are not, based on these facts required to tell the court about Snoopy's falsifications.
Question 6
You're the lawyer for the plaintiff, Vlad N. Bokoff, who is suing his publisher for breach of an oral contract. You call to the stand a witness, Vera (a friend of Vlad) who said during trial preparations that she heard the defendant publisher agree to a million dollar deal with Vlad. Vera shocks you when she shows the jury a memo she claimed to have written at the time of the contract negotiations. You are positively sure the memo is a fraud and that Vera is lying. Must you interrupt Vera and try to get her to recant before telling the court about her lie?
Correct
Incorrect!
Correct A lawyer is not obligated to counsel a non-client witness regarding perjury and its consequences, nor is the lawyer obligated to tell the non-client witness that she must cure the erroneous testimony. The Model Rules provide these courses of action for lawyers faced with clients who lie on the stand, in large part to first try and protect client confidences. The consequences of revealing confidences are generally not in issue when lawyers are forced to consider reporting perjury by non-client witnesses. As such, on the facts, you are entitled to disclose the fraud to the court even though you have not yet counseled Vera about her lies.
Incorrect! A lawyer is not obligated to counsel a non-client witness regarding perjury and its consequences, nor is the lawyer obligated to tell the non-client witness that she must cure the erroneous testimony. The Model Rules provide these courses of action for lawyers faced with clients who lie on the stand, in large part to first try and protect client confidences. The consequences of revealing confidences are generally not in issue when lawyers are forced to consider reporting perjury by non-client witnesses. As such, on the facts, you are entitled to disclose the fraud to the court even though you have not yet counseled Vera about her lies.
Question 7
You are writing a brief to the New York Court of Appeals on behalf of your client, Sam Swap, the defendant in an online song-swapping case. In looking for cases to cite as precedent for your argument against the plaintiff, a powerful multinational corporation, you come across an old court ruling from the New Jersey Court of Appeals that contradicts your argument. Must you cite this holding in your brief, or risk discipline?
Correct
Incorrect!
Correct Under Model Rule 3.3, failure to cite authority that is directly adverse to your client's position is an ethical violation. However, a lawyer will not be liable for an ethical violation when the authority he fails to cite is not from the controlling jurisdiction. Decisions from foreign jurisdictions do not control, and therefore a lawyer would not be required in a brief to cite them as precedent. A court might take foreign decisions into consideration, especially if the home jurisdiction has not judged the legality of a particular position ' but those foreign decisions do not control. In this case, if you are writing a brief on behalf of a client to the New York Court of Appeals, the New Jersey decisions will not serve as controlling law. Therefore, you are not obligated to cite New Jersey decisions in your brief for Mr. Swap. Note, however, that if you are writing a brief and you are unsure whether certain adverse authority would control, you should resolve your doubts in favor of citing the case. Judges look very unfavorably upon lawyers who fail to cite important cases in their briefs ' and a judge's negative feelings toward a lawyer can have a negative impact on a client's case.
Incorrect! Under Model Rule 3.3, failure to cite authority that is directly adverse to your client's position is an ethical violation. However, a lawyer will not be liable for an ethical violation when the authority he fails to cite is not from the controlling jurisdiction. Decisions from foreign jurisdictions do not control, and therefore a lawyer would not be required in a brief to cite them as precedent. A court might take foreign decisions into consideration, especially if the home jurisdiction has not judged the legality of a particular position ' but those foreign decisions do not control. In this case, if you are writing a brief on behalf of a client to the New York Court of Appeals, the New Jersey decisions will not serve as controlling law. Therefore, you are not obligated to cite New Jersey decisions in your brief for Mr. Swap. Note, however, that if you are writing a brief and you are unsure whether certain adverse authority would control, you should resolve your doubts in favor of citing the case. Judges look very unfavorably upon lawyers who fail to cite important cases in their briefs ' and a judge's negative feelings toward a lawyer can have a negative impact on a client's case.
Question 8
You represent Tom Tiepolo, plaintiff in a personal injury suit against Francis Fragonard. Tiepolo broke his leg in a car crash caused by Fragonard, who fell asleep at the wheel coming home late from a Shriner's meeting. You're negotiating with Fragonard's attorney, Al Einstein, for a settlement. Einstein apparently handles hundreds of these cases at the same time and messes up facts related in a police report of the accident. The failure to point out these facts leaves Einstein with little ammunition in his negotiations on behalf of Fragonard. You realize right away that Einstein has either misread the police reports, or simply forgot what he read. You keep your mouth closed, figuring it's not your obligation to correct the opposition's mistake. Have you violated an ethical duty of candor?
Correct
Incorrect!
Correct In order to answer this question, we have to combine some of the Model Rules that deal with duties to reveal. Model Rule 3.4 holds that a lawyer may not obstruct the opposition's access to evidence, and that a lawyer may not falsify evidence. Model Rule 4.1 holds that a lawyer may not make a false statement of material fact or law. Neither of these rules hold that a lawyer has an obligation to assist his adversary in uncovering evidence that will bolster his adversary's position. Provided you did not obstruct access to evidence, falsify evidence, or make a false statement of material fact or law, then you did not violate an ethical duty. Therefore, you did not have to reveal to Attorney Einstein his error.
Incorrect! In order to answer this question, we have to combine some of the Model Rules that deal with duties to reveal. Model Rule 3.4 holds that a lawyer may not obstruct the opposition's access to evidence, and that a lawyer may not falsify evidence. Model Rule 4.1 holds that a lawyer may not make a false statement of material fact or law. Neither of these rules hold that a lawyer has an obligation to assist his adversary in uncovering evidence that will bolster his adversary's position. Provided you did not obstruct access to evidence, falsify evidence, or make a false statement of material fact or law, then you did not violate an ethical duty. Therefore, you did not have to reveal to Attorney Einstein his error.
Question 9
Attorney Ike Bashevis asks your client, Ad Loos, a question about his health insurance coverage during a deposition. (A deposition is an interview given under oath in which information is elicited for purposes of discovery in litigation). You think this question is absolutely unnecessary. You interrupt Attorney Bashevis and tell Ad Loos he doesn't have to answer the question. A few days later, your assistant comes across a rule of evidence that changes your view of the health insurance question, making the question relevant to the opposition's case. Even though the deposition has ended, must you reveal to the opposition what you have learned?
Correct On these facts, you essentially obstructed the opposition's access to evidence by making a misstatement of law when you told Mr. Bashevis that his health insurance question was irrelevant. As Model Rule, 3.4(a) states, 'a lawyer shall not ' conceal ' material having potential evidentiary value.' Moreover, the rule holds that a lawyer must make a 'diligent effort to comply with a legally proper discovery request.' As such, a failure to correct your misstatement could result in sanction.
Incorrect! On these facts, you essentially obstructed the opposition's access to evidence by making a misstatement of law when you told Mr. Bashevis that his health insurance question was irrelevant. As Model Rule, 3.4(a) states, 'a lawyer shall not ' conceal ' material having potential evidentiary value.' Moreover, the rule holds that a lawyer must make a 'diligent effort to comply with a legally proper discovery request.' As such, a failure to correct your misstatement could result in sanction.
Correct
Incorrect!
Question 10
Your client, famous boxer Micah Tiesohn, hires you to represent him in the sale of one of his fabulously expensive vintage automobiles. You're amazed when you realize the potential bluebook value of Tiesohn's little two-seater sports car is as much as your 4-bedroom home. The buyer's attorney requests that you obtain a mechanic's report on the state of the car. You do so. You and Micah are very disappointed to find that in the mechanic's opinion, the car is worth a whole lot less than you originally thought. When negotiations begin, you're very surprised that the buyer's attorney offers the bluebook value of a "mint" auto instead of one that's in "good" condition. You realize the buyer's attorney or the buyer might have overlooked the mechanic's opinion. Should you point this out to the other attorney?
Correct
Incorrect!
Correct As long as you complied with the buyer's request for the mechanic's report, you have no obligation to interpret it for the buyer. Since you as attorney for seller Tiesohn did not 'make a false statement of material fact or law,' (See Model Rule 4.1(a)), you are complying with your ethical obligations. As long as you do not 'engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,' (See Model Rule 8.4(c)), you will not be disciplined.
Incorrect! As long as you complied with the buyer's request for the mechanic's report, you have no obligation to interpret it for the buyer. Since you as attorney for seller Tiesohn did not 'make a false statement of material fact or law,' (See Model Rule 4.1(a)), you are complying with your ethical obligations. As long as you do not 'engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,' (See Model Rule 8.4(c)), you will not be disciplined.
Question 11
You represent famous boxer Micah Tiesohn in helping him contract with a public relations professional, Paul Roberts. Tiesohn wants to enter into an agreement whereby in return for public relations services, Roberts will earn a percentage of Tiesohn's purse in his next fight with Elijah Holyman. You draft a contract, and Roberts's attorney sends it back to you after making some changes. You realize in looking over the edits that Roberts's attorney miscalculated the percentages for fees owed to Roberts. You nonetheless say nothing, get Tiesohn to sign, and return the contract to Roberts for his signature. Have you breached an ethical duty?
Correct A lawyer has an obligation to protect his client's interests in negotiations. However, if a contract provision is inadvertently misstated, and the lawyer knows it, he must act to correct the error. Otherwise, the attorney will be 'engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.' See Model Rule 8.4(c). Because you did not act to cure the known error, you deceived the opposition and subverted the intent of both your client Tiesohn and Roberts.
Incorrect! A lawyer has an obligation to protect his client's interests in negotiations. However, if a contract provision is inadvertently misstated, and the lawyer knows it, he must act to correct the error. Otherwise, the attorney will be 'engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.' See Model Rule 8.4(c). Because you did not act to cure the known error, you deceived the opposition and subverted the intent of both your client Tiesohn and Roberts.
Correct
Incorrect!
Question 12
You represent Jane Smith in an ex parte domestic violence hearing. Jane wants you to help her get a temporary restraining order against her husband. Jane requests that you do not answer a question on a court form asking whether the defendant is in possession of any weapons. Jane does not want the court to know that her husband, a convicted felon, is in possession of a shotgun. She wants to keep her husband away from the house but is afraid that if he is arrested for unlawful weapons possession, he will never get out of jail. Since the goal your client wants you to achieve is obtaining the restraining order, and not an arrest of her husband, do you omit the answer to this question on the form out of allegiance to Jane?
Correct
Incorrect!
Correct First of all, according to Model Rule 3.3(d), a lawyer participating in an ex parte hearing has an ethical obligation to reveal all material facts ' even ones that are adverse ' in order for the court to make a reasoned and informed decision. By omitting essential information, especially in a hearing related to domestic violence, you are preventing the court from doing its job, not to mention possibly bringing harm to your client by failing to address the issue of illegal weapons. In these situations, at the hearing for the restraining order, the court would probably ask the lawyer or the client about the weapons issue. Surely it would be in the client's and the attorney's best interests to answer truthfully all questions posed by the court, especially in such a potentially dangerous situation.
Incorrect! First of all, according to Model Rule 3.3(d), a lawyer participating in an ex parte hearing has an ethical obligation to reveal all material facts ' even ones that are adverse ' in order for the court to make a reasoned and informed decision. By omitting essential information, especially in a hearing related to domestic violence, you are preventing the court from doing its job, not to mention possibly bringing harm to your client by failing to address the issue of illegal weapons. In these situations, at the hearing for the restraining order, the court would probably ask the lawyer or the client about the weapons issue. Surely it would be in the client's and the attorney's best interests to answer truthfully all questions posed by the court, especially in such a potentially dangerous situation.
Question 13
As a tax attorney, you have dedicated much of your career to discovering loopholes in the law to help your clients minimize their tax liabilities. You've earned the nickname "Lawyer Loop" by colleagues, and your reputation spreads among clients, making your office rather popular. One day, a client seeks your advice on how to minimize state tax liability. You study the client's essential information, and fail to see any loopholes. The client becomes angry, and his face turns so red he looks like a different character. You ask some questions about the client's family, and find out he has a brother in an adjoining state, who he visits quite often. You tell your client you'll vouch for his residency in this adjoining state, where taxes are lower. You tell the client he could claim he's been a tenant of his brother for over a year. Are you subject to discipline?
Correct It is forbidden for a lawyer to advise or assist a client in engaging in fraudulent conduct. See Model Rule 1.2(d). Moreover, lying to the government constitutes a criminal act ' and it is forbidden to engage in a criminal act that reflects negatively on a lawyer's honesty. See Model Rule 8.4(b). Lawyer Loop could face disbarment.
Incorrect! It is forbidden for a lawyer to advise or assist a client in engaging in fraudulent conduct. See Model Rule 1.2(d). Moreover, lying to the government constitutes a criminal act ' and it is forbidden to engage in a criminal act that reflects negatively on a lawyer's honesty. See Model Rule 8.4(b). Lawyer Loop could face disbarment.
Correct
Incorrect!
Question 14
You represent the Inbread Corp. in its suit for contractual interference against Neofight, Inc. In discovery, you request records of every contract Neofight and its subsidiaries have entered into in the last 50 years. Neofight is a huge multinational conglomerate with holdings vast and numerous. Nonetheless, you reason it is your right in discovery to access all the information you deem relevant to proving your case. Are you subject to discipline?
Correct The Model Rules hold that a lawyer may not make a frivolous discovery request (See Model Rule 3.4(d)). A request for information regarding every contract entered into by a multinational corporation with vast holdings is not just frivolous ' it's laughable. Clearly such a request is meant to harass the opponent, and you would indeed be subject to discipline.
Incorrect! The Model Rules hold that a lawyer may not make a frivolous discovery request (See Model Rule 3.4(d)). A request for information regarding every contract entered into by a multinational corporation with vast holdings is not just frivolous ' it's laughable. Clearly such a request is meant to harass the opponent, and you would indeed be subject to discipline.
Correct
Incorrect!
Question 15
Your client, Leo Lyon, is being sued by his ex-wife, Liza Vanilli, who claims Leo purposefully ran over her foot with his big blue SUV when he saw her on the corner of Broadway and 56th. Liza's foot was badly broken in the incident. In her complaint, Liza correctly alleges that Leo lives in Scarsdale, New York and drives a big blue SUV. You think issuing a general denial as to all of Liza's allegations would be proper in advocating zealously on behalf of Leo. Are you subject to discipline for doing so?
Correct Issuing a general denial can be dangerous for an attorney, because he could be denying facts that are not even controversial, as in this case. In denying the undeniable in a complaint, you are asserting a frivolous defense for which you would be subject to discipline.
Incorrect! Issuing a general denial can be dangerous for an attorney, because he could be denying facts that are not even controversial, as in this case. In denying the undeniable in a complaint, you are asserting a frivolous defense for which you would be subject to discipline.