Question 1

Your long-time client, John Carter, recently came to your office to tell you that he expects to be sued by the person who bought his house. He had told the buyer that the house had a dry basement. Although the basement had never flooded in the five years that he had lived there, Carter had been told by a prior owner that the basement regularly flooded after a heavy rain. There was such a rain this year, and the buyer’s furniture was destroyed.

Shortly before his death, you were able to interview the prior owner of the house, who told you what he had told Carter about the flooding. You have notes of that interview in which you comment on the former owner’s likely credibility at trial. In addition, while at a party, Carter’s banker let slip that Carter is in bad financial condition. The buyer has now filed suit against Carter.

• The buyer has subpoenaed you to give a deposition. What information must you disclose?
• The buyer has subpoenaed any documents you have related to the case. What must you disclose?
• One of your college friends, who is about to loan money to Carter, has informally asked you about Carter’s financial condition. You would like to help your college friend. What may you disclose?
• If Carter is compelled to testify at trial, may he use the attorney-client privilege as a basis for refusing to disclose the conversation he had with the prior owner?

Question 2

In a federal investigation of Defendant for tax fraud, the grand jury by subpoena requests a letter written January 15 by Defendant to her attorney in which she stated: “Please prepare a deed giving my ranch to University but, in order to get around the tax law, I want it back-dated to December 15.”

Must attorney produce the letter?

Question 3

Attorney represents Client in a civil commitment proceeding. During a break in the proceeding, Client confidentially tells Attorney that he (Client) intends to commit suicide at the next break. Attorney, who believes Client will carry out the threat, would like to inform the appropriate authorities.

May Attorney do so?

Question 4

On June 1, Owner consults Attorney about a motor vehicle collision resulting in a suit by P against Owner. Attorney calls E, an expert he has hired to testify in this case, into the conference to make notes of what is said, and those present discuss the facts of the collision. A few weeks later, Attorney is subpoenaed by the grand jury and asked to disclose the substance of her June 1 conversation with Owner.

Must Attorney disclose such information?

Question 5

You are an attorney who represents Curtis, a wealthy real estate developer. Curtis has been charged with tax fraud and the District Attorney has served a subpoena directing you to produce some private bank records that Curtis gave you for safekeeping.

Must you produce the records?

Question 6

An attorney represents a company that produces chemical products. Some of the waste products that the company manufactures are highly toxic and are likely to cause serious immediate physical harm if disposed of improperly. The president of the company recently informed the attorney that a new employee mistakenly disposed of the waste products in the ground behind the company plant, an area that is part of the source of the city’s water supply. The attorney advised the president that the company could be liable for negligence in lawsuits brought by any persons harmed by the waste products. As a result, the attorney advised the president to immediately report the problem to city authorities. Fearful of adverse publicity, the president declined to do so. The attorney further advised the president that she believed the president’s decision was immoral. The president continued to decline to report the matter. The attorney then informed the president that she was withdrawing from the representation and would inform the authorities herself. Immediately after withdrawing, the attorney reported the company’s conduct to the authorities.

Is the attorney subject to discipline?

1. Yes, because the information was given to the attorney in confidence and may not be revealed without the client’s consent.
2. Yes, unless the company’s conduct was criminal.
3. No, because the attorney reasonably believed that the company’s disposal of the waste products was likely to cause serious physical harm.
4. No, because the attorney reasonably believed that the president was pursuing an imprudent course of conduct.

Question 7

Attorney represented Client in a large real estate deal. Buyer, who purchased the real estate from Client, has filed suit against both Client and Attorney, alleging fraud. Attorney had advised Client by letter against making the statements relied upon by Buyer as the basis of Buyer’s claim. In her defense to Buyer’s suit, Attorney wishes to reveal confidential information imparted to Attorney by Client that will be favorable to Attorney but damaging to Client.

May Attorney do so?

Question 8

Client, who is a fugitive from justice, is seeking an attorney to represent him. Client visits Lawyer for a free initial consultation. During the meeting, Client admits guilt. At the end of the meeting, however, Client decides not to hire Lawyer.

• Is Lawyer required or allowed to disclose Client’s admission of guilt?
• What if, unbeknownst to Client, Lawyer had never passed the bar exam and thus was not a licensed attorney?

Question 9

John, who is employed by ABC as a truck driver, was involved in an accident last month. The other driver recently sued both ABC and John. Attorney, who represents ABC Corp., but not John, meets separately with both John and ABC’s President, as part of her case preparation.

Which of the communications are covered by the attorney-client privilege?

1. Attorney’s communications with the president
2. Attorney’s communications with John
3. Both
4. Neither

Question 10

You are a public defender representing Jerry Cashwell, who has been charged with murder. Based on witness statements, the police and prosecutor believe that another man, Lee Hunt, planned the murder and that Cashwell acted as Hunt’s accomplice in carrying out the killing. To avoid any potential conflict, the court has appointed another lawyer to represent Hunt.

During your initial meeting with Cashwell, he tells you, “I killed that guy all on my own. Hunt didn’t have anything to do with it.” Based on the details that Cashwell provides about the crime, and the lack of any apparent motive to falsely claim sole responsibility, you conclude that Cashwell is telling the truth.

What are your obligations under Rule 1.6(a)? Do any of the exceptions under Rule 1.6(b) apply at this point?

Cashwell and Hunt are tried separately. At Hunt’s trial, he testifies that he had no role in the crime. Nevertheless, Hunt is convicted and sentenced to life imprisonment.

Following Hunt’s conviction, you reach an agreement with the prosecution under which Cashwell will plead guilty to the murder charge and receive a life sentence. The prosecutor tells you they are offering this deal, “because we know Cashwell & Hunt acted together”. You notify Cashwell of the plea offer and explain to him that, if he goes to trial and it comes out that he acted alone, he would likely face the death penalty. Cashwell accepts the deal and enters a guilty plea. At Cashwell’s allocution, he does not reveal that Hunt had no involvement.

Do you have any obligation to correct the prosecutor’s mistaken belief about Hunt’s involvement in the murder? Do you have any obligation to inform the court that Hunt was not involved?

About ten years later, Cashwell commits suicide in prison. Hunt remains in prison serving his life sentence.

Does MRPC Rule 1.6 permit you to reveal Cashwell’s admission of sole responsbility to Hunt’s attorney now that Cashwell is dead?

Does NC Rule 8.6 permit or require disclosure?

Question 11

In which of the following circumstances would the information be covered by both the duty of confidentiality and the attorney-client evidentiary privilege? Select all that apply:

1. Lawyer represented Client in a tax matter. With Client’s consent, Lawyer hired an accountant to examine Client’s tax records, consult with Client, and prepare reports for Lawyer to use in representing Client.
2. Lawyer represented Client in a property dispute concerning a boundary line dispute. When Lawyer reviewed county land records, Lawyer discovered that the person who sold the property to Client did not have full legal title to the property.
3. Lawyer represented Client in a drunk driving case. Lawyer interviewed the bartender at the bar from which Client drove home on the night in question. The bartender told Lawyer that he saw Client consume five drinks.
4. Lawyer represented Client in a breach of contract case. When investigating Client’s case, Lawyer found a newspaper article reporting a bad business deal in which Client was involved several years ago.
5. Lawyer represented Client in a murder case. During Lawyer’s first office consultation with Client, Client confessed to killing the victim. Client spoke Spanish, so Lawyer retained an interpreter to be present during the consultation.

Question 12

Lawyer represented many clients in a broad range of legal matters, such as family law, criminal law, and landlord tenant law cases. To stay in prompt contact with all these clients, Lawyer used text messaging rather than rely on a traditional office telephone system. Is Lawyer subject to discipline for using text messaging with her clients?

1. Yes, because text messaging violates a lawyer’s duty of confidentiality.
2. No, if the clients agreed to text messaging.
3. No, because any form of communication a lawyer chooses is impliedly authorized by the representation.
   
4. No, if Lawyer consulted with the clients about the risks and limits of text messaging, and competently and diligently investigated the security of the text messaging system and ensures that it is not used for sensitive communications that cannot be adequately protected from outside access.

Question 13

Several years ago, you represented Client in a homicide investigation. Client privately confessed to the killing, but the investigation never resulted in a criminal charge. Years later, you represented Client in a child custody dispute between Client and her ex-spouse. Client’s ex-spouse sought full custody and claimed that Client was not an effective or safe parent, in part because of the homicide investigation. The family court judge ruled that the homicide investigation was not relevant, because Client never was charged. You have no information that Client ever has harmed, threatened, or neglected her children. What is your professional responsibility in this circumstance according to Model Rule 1.6?

1. You must disclose Client’s confession to the murder if disclosure is in the children’s best interests.
2. You may disclose Client’s confession to the murder if disclosure is in the children’s best interests.
3. You must not disclose Client’s confession to the murder.
4. You may disclose that Client committed the murder to Client’s ex-spouse, but only if you disclose this information anonymously.
5. You must disclose Client’s confession to the murder if you subjectively fear that Client may be dangerous to the children.

Question 14

Lawyer represented Client briefly on a serious drug charge. During one consultation, Client said to Lawyer, “I really should kill the witness in this case–it would solve all my problems.” Lawyer responded, “Terrible idea. I don’t have to tell you how serious that crime would be, and it would make your situation a million times worse.” Client replied, “I hear you. Forget I said anything about it.” Lawyer and Client resumed their discussion of how to defend the drug charge. A few weeks later, Lawyer learned that the witness was murdered. Lawyer promptly withdrew from representing Client. Client was charged with this murder, and the prosecutor subpoenaed Lawyer to testify at Client’s murder trial, because the prosecutor suspected that Lawyer had relevant information about Client’s intent to kill the witness. How should Lawyer respond to the subpoena when Lawyer appears before the judge as a witness?

1. “Your Honor, I cannot answer the prosecutor’s questions, because this information is confidential.”
2. “Your Honor, because of the crime-fraud exception to the attorney-client privilege, I will answer the prosecutor’s questions.”
3. “Your Honor, I cannot answer the prosecutor’s questions and I request an ex parte, sealed hearing on my client’s attorney-client privilege claim.”
4. “Your Honor, I will answer the prosecutor’s questions unless Client’s current lawyer objects.”
5. “Your Honor, I will not answer the prosecutor’s questions, because a prosecutor never can make a lawyer testify against his or her own client in a criminal case.”
6. “Your Honor, I can answer the prosecutor’s questions, because I am no longer Client’s lawyer.”

Question 15

Lawyer represented Client in a high-value commercial real estate sale to another party. After the transaction was completed, Lawyer learned that Client falsified several documents relating to the value and suitability of the property. Lawyer negotiated from these documents on Client’s behalf in securing the deal with the purchaser. What response most accurately identifies Lawyer’s professional responsibility?

1. Lawyer must not disclose the falsity of the documents because this information is confidential.
2. Lawyer may disclose the falsity of the documents because this information is not confidential under the crime-fraud exception.
3. Lawyer may disclose the falsity of the documents, but only if the purchaser faces future financial harm from Client’s fraud that disclosure could prevent.
4. Lawyer may disclose the falsity of the documents to mitigate or rectify the harm that Client caused to the purchaser.
5. Lawyer must disclose the falsity of the documents to protect the purchaser’s financial interests.

Question 16

A public defender is representing the defendant in a murder case. In investigating the case, the public defender gathers indisputable evidence from a relative of the client that the client committed a murder for which another man has been sentenced to life in prison without parole. Which of the following statements best describes the lawyer’s options under the Model Rules of Professional Conduct?

1. The lawyer must disclose her client’s guilt if she reasonably believes that doing so is necessary to remedy the wrongful conviction of the other man
2. The lawyer may disclose her client’s guilt because the information is not covered by the attorney-client privilege.
3. The lawyer may not disclose his client’s guilt without her client’s permission because that is information relating to the representation of her client.
4. The lawyer may disclose her client’s guilt if she reasonably believes that doing so is necessary to prevent substantial bodily harm to the innocent man.

Question 17

An attorney is outside counsel to Solar Panels, Inc. (SPI), a company that is engaged in the design and production of experimental solar panels for the generation of electricity in the American southwest. A new president of SPI instructs the lawyer to investigate rumors that SPI has defrauded its customers with false reports of the efficiency and cost effectiveness of SPI’s products. The attorney conducts the investigation and concludes that the allegations are true and that SPI perpetrated this fraud without the knowledge or assistance of any of its lawyers. The attorney strongly believes that it is in SPI’s interest to reveal publicly what the prior management of the company did, in order to try to protect the company’s credibility with investors, the government, and the public. The attorney is further convinced that continued silence would cause enormous harm to the company when the truth inevitably comes out. The attorney takes his concerns to the officers and Board of Directors of SPI, but the attorney is instructed to remain silent. Which of the following statements most accurately reflects the attorney’s options under the Model Rules of Professional Conduct?

1. The attorney may not reveal the information because the client has refused to consent to the disclosure.
2. The attorney may not reveal the fraud publicly because the lawyer’s services were not used in connection with the fraud and the attorney learned the information while conducting an investigation for SPI.
3. The attorney may reveal the information publicly because the attorney reasonably believes that doing so is necessary to prevent substantial injury to the organization.
4. The attorney may reveal the information because the client has perpetrated a fraud that caused substantial financial injury to others.

Question 18

Diane Simmons is an attorney who represents Blake Jeffries, who has been accused of abducting a young woman who was hiking in a nearby national forest. Jeffries tells Simmons that he did abduct the girl, and the girl is presently tied up without food or water in a cabin deep in the forest. Which of the following statements most accurately states the lawyer’s options?

1. The lawyer must reveal this information to save the girl.
2. The lawyer may choose not to reveal the information, in order to protect her client.
3. The lawyer may reveal the information only with her client’s informed consent.
4. The lawyer must not reveal this information.