REVIEW QUESTIONS FOR CLASS FOUR

Although you will get more out of the readings and class discussion if you work on the review questions in advance of class, you can choose to wait until we go over them in class. We will use clicker technology for the class to answer each question before we discuss it, so your responses will be a better indicator of your knowledge and understanding if you have gone over the questions before class and recorded what you think are the correct answers. The on-line syllabus gives you the option of both viewing a web-based version of these questions or downloading a “print-friendly” pdf version.

Some of the review questions are similar either to past exam questions in this course or to sample questions on the Multistate Professional Responsibility Exam (MPRE) administered by the National Conference of Bar Examiners (NCBEX). A 60-question, annotated online practice exam, equivalent in length to the actual MPRE and containing questions and annotations written by the drafters of the MPRE, can be purchased from the NCBEX web site for $24: www.ncbex.org MPRE questions often use the verbs MUST or SUBJECT TO DISCIPLINE to ask whether the conduct referred to or described in the question subjects the attorney to discipline under one or more provisions of the Model Rules and the verbs MAY, PERMITTED OR PROPER to ask whether the conduct referred to or described in the question is professionally appropriate in that it would not subject the attorney to discipline under one or more provisions of the Model Rules. This format will therefore be used in some of the following questions. Other questions may ask simply whether conduct would be REQUIRED, PROHIBITED, or PERMITTED --- these verbs correspond to SHALL, SHALL NOT and MAY as used in all versions of the Rules of Professional Conduct.

QUESTIONS A-E ASK YOU TO APPLY THE GEORGIA RULES OF PROFESSIONAL CONDUCT (GRPC)

A.   Under GRPC 1.6, a lawyer MUST disclose information, even if gained in the professional relationship with a client and even if no law requires the lawyer to do so, if necessary to prevent:

  1.   Death

  2.   Serious injury

  3.   Both (1) and (2)

  4.   Neither (1) nor (2)

B.   The “prevent death” exception to GRPC 1.6 only applies if the death:

  1.   Would be the result of a criminal act

  2.   Would be caused by the client

  3.   Both (1) and (2)

  4.   Neither (1) nor (2)

C.  [Hint: Make sure you have reviewed the Scope section of the Georgia Rules before answering this question.] Maria Lopez is a lawyer. Cameron Smith is a law student. Smith has purchased a (very) used laptop computer from a fellow law student, Ari Vincent, paying $200 by personal check. Upon trying out the laptop the same day it was purchased, Smith is very dissatisfied with its performance. Without first complaining to Vincent, Smith contacts his bank and stops payment on the check. The next day Smith has a 30 minute meeting with Lopez arranged through the State Bar referral program to discuss his options regarding the laptop purchase. Lopez tells Smith he should not have stopped payment on the check. Unhappy with this advice, Smith terminates the meeting before the 30 minutes are up and refuses to pay Lopez the $50 fee required for an initial meeting under the terms of the Bar Referral program. As soon as Smith leaves, Lopez calls the Atlanta Police Department to report Smith as having committed theft by deception. Under GRPC 1.6:

  1.   Lopez was PERMITTED to make this disclosure because, since Smith did not pay for the initial meeting, the information was not gained in a professional relationship with a client.

  2.   Lopez was PERMITTED to make this disclosure because there was a controversy between Lopez and Smith due to the failure to pay for the meeting.

  3.   Lopez was PROHIBITED from making this disclosure if she lacked sufficient information to conclude that Smith’s conduct was criminal.

  4.   None of the above.

D.  After the meeting with Lopez, Smith goes to another lawyer, who insists on payment of $50 in advance for a consultation. Smith pays the $50 but receives the same advice. Under which of the following facts would the lawyer be PROHIBITED by GRPC 1.6 from reporting Smith to the police for committing theft by deception?

  1.   The financial loss to Vincent was not substantial.

  2.   The harm to Vincent had already occurred.

  3.   The lawyer did not first try to persuade Smith to make good on the check before calling the police.

  4.   All of the above.

E.   [Hint: review comments 16 and 17 to GRPC 1.6 before answering this question.] When District Attorney Holcombe told Armani in the judge’s presence that he had ordered an investigation to see if criminal charges can be brought due to Armani’s keeping secret what he knew about the fate of Petz and Hauck (see pp. 153-55), Armani could have disclosed at that point that Garrow only told him about the dead bodies in order to negotiate a possible insanity plea. If GRPC 1.6 had applied to him, disclosure of that information would have been:

  1.   PROHIBITED because Garrow had not consented to disclosing this information to the judge.

  2.   PROHIBITED because criminal charges had not yet been brought.

  3.   PERMITTED to the extent necessary to defend himself against Holcombe’s accusation.

  4.   PROHIBITED because disclosure of this information would be embarrassing to Garrow.

F. At the time of Armani’s representation of Garrow, New York had adopted the ABA Model Code of Professional Responsibility, including Disciplinary Rule 4-101 (Preservation of Confidences and Secrets of a Client) [assigned as Reading 7 for Class 2]. Which of the following is a difference between DR 4-101 and GRPC 1.6?

  1.   More information is protected from disclosure under GRPC 1.6.

  2.   GRPC 1.6 permits disclosure of a crime that has already taken place if necessary to prevent harm that has not yet occurred.

  3.   If a client confides in her lawyer that another person intends to commit a crime but asks that information be kept secret, DR 4-101 would not permit disclosure of that information while GRPC 1.6 might.

  4.   All of the above.

G.  [The following is based on an actual Sample Multistate Professional Responsibility Examination.] Assume that the current ABA Model Rule 1.6 (as amended through 2003) applies. An attorney represents a client who is under indictment for homicide. In the course of representation, the client told the attorney that she had previously killed two other people. These murders are completely unrelated to the murder indictment for which the attorney is providing representation. With the client’s consent, the attorney made a tape recording of the client’s confession regarding the unrelated homicides. At the attorney’s request, the client also drew a map of the remote locations of the victim’s graves from the unrelated killings. These bodies have not been found by the police, and the client is not a suspect in either crime, both of which remain unsolved. Is the attorney subject to discipline if he fails to voluntarily disclose to the authorities the locations of the victims’ bodies?

  1.   Yes, because as an officer of the court, the attorney must disclose any knowledge concerning the commission of prior crimes by his client.

  2.   Yes, because the attorney is impeding the state’s access to significant evidence.

  3.   No, because the attorney did not represent or advise the client with respect to these prior crimes.

  4.   No, because the information was related to the attorney’s representation of the client under the current indictment.

H.  There is the following difference between the original 1983 version of ABA Model Rule 1.6 to the version adopted in 2002 (which is NOT the current version):

  1.   The 1983 version only permits disclosure to prevent death if that death would be caused by a criminal act.

  2.   The 2002 version permits disclosure to prevent death that would be caused by someone other than the client.

  3.   Both (1) and (2)

  4.   Neither (1) not (2)

I.  Under the current version of ABA Model Rule 1.6 (as amended in 2003), which of the following conditions must be met before a lawyer can disclose information relating to representation of a client to prevent the client from committing fraud?

  1.   The lawyer believes that disclosure is necessary if the fraud is to be prevented.

  2.   The lawyer is reasonably certain that substantial injury to the financial interests of another would result if the fraud is not prevented.

  3.   The client has used or is using the lawyer’s services to commit the fraud.

  4.   All of the above.

J. Armani’s discussion with “Dean Grant” (pp. 93-98) would have been explicitly PERMITTED by which of the following rules on confidentiality?

  1.   GRPC 1.6

  2.   ABA Model Rule 1.6 (1983 version)

  3.   ABA Model Rule 1.6 (2002 version)

  4.   Disciplinary Rule 4-101

K.   In comparing the current version of ABA Model Rule 1.6 (as amended in 2003) and GRPC 1.6, which of the following statements is NOT true?

 Unless disclosure is necessary to prevent serious injury or death,

  1.   unlike the current MR 1.6, GRPC 1.6 does not permit disclosure to prevent harm that is only financial in nature.

  2.   unlike the current MR 1.6, GRPC 1.6 only permits disclosure to prevent harm or loss caused by criminal conduct.

  3.   unlike the current MR 1.6, under GRPC 1.6 if a harm or loss has already taken place, disclosure is not permitted.

  4.   All of the above.