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1 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) 0% 0% 0% 0%

2 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). Correct. 1.6(b)(1) states A lawyer MAY reveal information covered by paragraph (a) to prevent serious injury or death

3 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) 0% 0% 0% 0%

4 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) Correct. Prevent death exception in 1.6(b)(1)(ii) permits disclosure in circumstances not covered by 1.6(b)(1)(i)

5 C. Assume that when the Bar Committee on Ethics investigates Hauck s complaint, Armani wants to explain that Garrow only told him about the dead bodies in order to negotiate a possible insanity plea. Under the Georgia Rules would such an action be: 1. Permitted 2. Prohibited 3. Required 0% 0% 0% Permitted Prohibited Required

6 C. Assume that when the Bar Committee on Ethics investigates Hauck s complaint, Armani wants to explain that Garrow only told him about the dead bodies in order to negotiate a possible insanity plea. Under the Georgia Rules would such an action be: 1. Permitted Correct, 1.6(b)(1)(iii) 2. Prohibited 3. Required

7 D. When brought before the Grand Jury on the charge on not reporting a dead body to the health authorities, Armani wants to explain that Garrow only told him about the dead bodies in order to negotiate a possible insanity plea. Under the Georgia Rules, would that action be: 1. Required 2. Prohibited 3. Permitted 0% 0% 0% Required Prohibited Permitted

8 D. When brought before the Grand Jury on the charge on not reporting a dead body to the health authorities, Armani wants to explain that Garrow only told him about the dead bodies in order to negotiate a possible insanity plea. Under the Georgia Rules, would that action be: 1. Required 2. Prohibited 3. Permitted Correct, 1.6(b)(1)(iii)

9 E. When at the end of the story Armani told the police that Garrow had been secretly exercising in prison, under the Georgia Rules would that action have been: 1. Required under Armani s duty of candor to the tribunal 2. Permitted because Garrow was no longer his client when Armani told the police 3. Permitted under an implied consent theory 4. Permitted to prevent death 0% 0% 0% 0%

10 E. When at the end of the story Armani told the police that Garrow had been secretly exercising in prison, under the Georgia Rules would that action have been: 1. Required under Armani s duty of candor to the tribunal 2. Permitted because Garrow was no longer his client when Armani told the police. No, duty of confidentiality continues. 1.6(e) 3. Permitted under an implied consent theory 4. Permitted to prevent death Correct.

11 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 Case Study Vol I pp ), could Armani have disclosed at that point that Garrow had told him about the dead bodies in order to negotiate a possible insanity plea?

12 F. If GRPC 1.6 had applied to Armani, 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. 0% 0% 0% 0%

13 F. If GRPC 1.6 had applied to Armani, 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. Correct, 1.6(b)(1)(iii) See Comment [16] 4. PROHIBITED because disclosure of this information would be embarrassing to Garrow.

14 [The following is based on an actual Sample Multistate Professional Responsibility Examination.] Assume that the current ABA Model Rule 1.6 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.

15 G. 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. 0% 0% 0% 0%

16 G. 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. Wrong, still information gained in the professional relationship, 1.6(a) 4. No, because the information was related to the attorney s representation of the client under the current indictment. Correct. For why 1 and 2 are wrong, see generally N.Y. State Bar Opinion No. 479 (1978)(rejecting disciplinary complaint against Armani)

17 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 of ABA 1.6 as amended in 2003): 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) 0% 0% 0% 0%

18 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 of ABA 1.6 as amended in 2003): 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) Correct version: to prevent the client from committing a criminal act likely to result in imminent death 4. Neither (1) not (2)

19 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. 0% 0% 0% 0%

20 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. Correct, ABA 1.6(b)(2)

21 J. Armani s discussion with Dean Grant (Case Study Vol I pp ) would NOT have been explicitly PERMITTED by which of the following Rule of Professional Conduct? 1. GRPC ABA Model Rule 1.6 (1983 version) 3. ABA Model Rule 1.6 (current version) 4. All of the above 26% 28% 13% 34%

22 J. Armani s discussion with Dean Grant (Case Study Vol I pp ) would NOT have been explicitly PERMITTED by which of the following Rule of Professional Conduct? 1. GRPC ABA Model Rule 1.6 (1983 version) Correct. See GRPC 1.6(b)(1)(iv) and current ABA 1.6(b)(4). 3. ABA Model Rule 1.6 (current version) 4. All of the above

23 L. 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. 0% 0% 0% 0%

24 L. 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. NOT true 2. unlike the current MR 1.6, GRPC 1.6 only permits disclosure to prevent harm or loss caused by criminal conduct. TRUE 3. unlike the current MR 1.6, under GRPC 1.6 if a harm or loss has already taken place, disclosure is not permitted. TRUE 4. All of the above.

25 M. Which of the following responses to the client perjury dilemma is rejected as unethical by Monroe Freedman in 3 Hardest Questions? 1. Withdrawal before trial 2. Refusing to put the client on the stand 3. Disclosing the perjury to the court 4. All of the above 0% 0% 0% 0% Withdrawal before trial Refusing to put the cl... Disclosing the perjury... All of the above

26 M. Which of the following responses to the client perjury dilemma is rejected as unethical by Monroe Freedman in 3 Hardest Questions? 1. Withdrawal before trial 2. Refusing to put the client on the stand 3. Disclosing the perjury to the court 4. All of the above Correct. Re-read Freedman, II. Specific Questions (discussion of the second question)

27 N. The holding in Nix v Whiteside is 1. If a lawyer knows his client will commit perjury, he must refuse to put him on the stand 2. If a criminal defendant commits perjury, defense counsel is required by Rule 3.3 to disclose the perjury to the judge 3. A criminal defendant who is prevented by his lawyer from committing perjury in his defense is not denied his constitutional right to assistance of counsel 4. All of the above 0% 0% 0% 0%

28 N. The holding in Nix v Whiteside is 1. If a lawyer knows his client will commit perjury, he must refuse to put him on the stand DICTA 2. If a criminal defendant commits perjury, defense counsel is required by Rule 3.3 to disclose the perjury to the judge DICTA 3. A criminal defendant who is prevented by his lawyer from committing perjury in his defense is not denied his constitutional right to assistance of counsel THE HOLDING 4. All of the above As to (1) and (2), see Brennan s concurrence.

29 O. This question refers to the Baby Jessica case. John Monroe, the lawyer who handled the adoption for the DeBoers in Iowa, made which of the following decisions that was consistent with the Georgia Rules? 1. To withdraw when it appeared that he would be a witness. 2. To advise Cara to seek independent legal advice before signing the adoption paperwork in the hospital 73% 3. To preserve as confidential Cara's statement to him about the identity of the real father 4. All of the above 23% 2% 2% To withdraw wh... To advise Cara... To preserve as... All of the abo...

30 O. This question refers to the Baby Jessica case. John Monroe, the lawyer who handled the adoption for the DeBoers in Iowa, made which of the following decisions that was consistent with the Georgia Rules? 1. To withdraw when it appeared that he would be a witness. CORRECT. This is what he did, in compliance with To advise Cara to seek independent legal advice before signing the adoption paperwork in the hospital He did NOT do this; story would probably have turned out differently if he did. 3. To preserve as confidential Cara's statement to him about the identity of the real father He did NOT do this and he would have violated 1.7 if he continued to represent the DeBoers while having this duty of confidentiality to Cara. 4. All of the above

31 P. Under the Georgia Rules, absent informed written client consent, a lawyer is prohibited from representing a client: 1. If there is a significant risk that representation of that client will be materially limited by the lawyer s duty to another client. 2. If the representation of that client is directly adverse to another client. 3. If there is a significant risk that representation of the client will be materially limited by the lawyer s personal beliefs regarding the subject of the representation. 4. All of the above 73% 22% 2% 2%

32 P. Under the Georgia Rules, absent informed written client consent, a lawyer is prohibited from representing a client: 1. If there is a significant risk that representation of that client will be materially limited by the lawyer s duty to another client. 2. If the representation of that client is directly adverse to another client. See Comment [4] 3. If there is a significant risk that representation of the client will be materially limited by the lawyer s personal beliefs regarding the subject of the representation. 4. All of the above. CORRECT. 1.7(a)

33 Q. Under the Georgia Rules, written client consent does not provide a sufficient exception to the prohibition on continuing to represent a client when a concurrent conflict of interest arises, if 1. The lawyer does not subjectively believe that she can continue to provide adequate representation 2. The lawyer s belief that she can continue to provide adequate representation is not objectively reasonable 3. Both 1 and 2 4. Neither 1 nor 2 16% 19% 56% 9%

34 Q. Under the Georgia Rules, written client consent does not provide a sufficient exception to the prohibition on continuing to represent a client when a concurrent conflict of interest arises, if 1. The lawyer does not subjectively believe that she can continue to provide adequate representation 2. The lawyer s belief that she can continue to provide adequate representation is not objectively reasonable See Comment [5] 3. Both 1 and 2. Correct. 4. Neither 1 nor 2 (1) and (2) are interpretations of GRPC 1.7(c)(3). (1) and (2) are more explicitly stated in ABA MR 1.7(b)(1)

35 R. Which of the following is mandated by the Georgia Rules if a concurrent conflict of interest arises after representation has begun? 1. The lawyer must communicate to the client reasonably available alternatives to being represented by that lawyer 91% 2. Each affected client must confirm its consent in writing to continued representation. 3. The lawyer must explain the material risks of continued representation by that lawyer. 4. All of the above 4% 4% 0% The lawyer mus... Each affected... The lawyer mus... All of the abo...

36 R. Which of the following is mandated by the Georgia Rules if a concurrent conflict of interest arises after representation has begun? 1. The lawyer must communicate to the client reasonably available alternatives to being represented by that lawyer 1.7(b)(2) 2. Each affected client must confirm its consent in writing to continued representation. 1.7(b) 3. The lawyer must explain the material risks of continued representation by that lawyer. 1.7(b)(2) 4. All of the above Correct.

37 REVIEW QUESTIONS ON CONFLICTS BETWEEN FORMER AND CURRENT CLIENTS AND THE SPECIAL PROBLEMS WHEN LAWYERS CHANGE FIRMS GRPC 1.9, 1.10 AND 1.11

38 Carmen George, widow of Martin George, filed a wrongful death action in Atlanta against the Acme Bicycle Company based on the death of her husband while riding an Acme bicycle. She hired the Sheldon law firm to represent her; Acme hired the Kirk law firm to defend. Ryan Paul was an associate at Kirk and took a deposition at Grady Hospital to review medical records relating to Martin s fatal accident. Six months later Paul left Kirk and joined Sheldon as an associate. Paul did not notify either Acme or the Kirk law firm about his new employment. Two months after joining the Sheldon firm, Paul along with his supervisor, Maria Gomez, appeared on behalf of George at a routine motion hearing to extend discovery deadlines in the case.

39 S. Which of the following is correct? 1. Paul is subject to disbarment. 2. If Gomez knew that Paul had previously represented Acme in this case, she is subject to disbarment. 3. Both 1 and 2 4. Neither 1 nor 2 0% 0% 0% 0%

40 S. Which of the following is correct? 1. Paul is subject to disbarment. Yes. 1.9(a) 2. If Gomez knew that Paul had previously represented Acme in this case, she is subject to disbarment. Yes. 1.10(a) 3. Both 1 and 2 4. Neither 1 nor 2

41 Relevant Georgia Rules: 1.9 (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7: Conflict of Interest: General Rule, 1.8(c): Conflict of Interest: Prohibited Transactions, 1.9: Former Client or 2.2: Intermediary.

42 Ten days after the motion hearing, Acme filed a motion to disqualify the entire Sheldon law firm from further representation of George. Gomez replied by filing an affidavit that, prior to receiving the disqualification motion, she had not known that Paul had previously represented Acme in the case. The affidavit further states that Paul never conveyed any confidential information to Gomez about Acme that he learned while at the Kirk firm, and that the Sheldon firm has now terminated Paul s employment.

43 T. Assuming the affidavit is true, if Gomez continues to represent George, is she subject to disbarment? 1. No, because the termination of Paul removes any possible conflict of interest 2. No, because Gomez acquired no confidential information about Acme 3. Yes, if Paul had told any other lawyer at Sheldon confidential information about Acme 4. Yes, because the termination of Paul is not relevant 0% 0% 0% 0%

44 T. Assuming the affidavit is true, if Gomez continues to represent George, is she subject to disbarment? 1. No, because the termination of Paul removes any possible conflict of interest It helps but 1.9(b)(2) must be satisfied. 2. No, because Gomez acquired no confidential information about Acme 3. Yes, if Paul had told any other lawyer at Sheldon confidential information about Acme. Correct. NO lawyer remaining at the firm can have information about Acme protected by (b)(2) 4. Yes, because the termination of Paul is not relevant

45 Relevant Georgia Rule: 1.10 (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6: Confidentiality of Information and 1.9(c): Conflict of Interest: Former Client that is material to the matter.

46 Assume that prior to joining the Sheldon firm, Paul has not worked for the Kirk firm, but he knows that his brother, an associate at Kirk, is working on the George case. Paul mentions this fact to Gomez when interviewing for the job but says that his brother has never told him any confidential information about the case. Upon hiring Paul, Gomez notifies her opposing counsel at Kirk, who replies that Acme wants the entire firm to withdraw from further involvement in the case.

47 U. Which of the following is correct? 1. If Paul works on the George case, he is subject to discipline 2. If Gomez continues to work on the George case, she is subject to discipline 3. Both 1 and 2 4. Neither 1 nor 2 0% 0% 0% 0%

48 U. Which of the following is correct? 1. If Paul works on the George case, he is subject to discipline Correct. 1.8(i) 2. If Gomez continues to work on the George case, she is subject to discipline See last sentence of 1.8(i) and 1.10(a) 3. Both 1 and 2 4. Neither 1 nor 2

49 Assume that the wrongful death suit was brought against both Acme Bicycle and the City of Atlanta and that Paul had worked on the case, not at the Kirk firm, but as a lawyer at the City Law Department. When Sheldon hired Paul, Gomez proposed to create a special employment contract with Paul.

50 U. Gomez can continue to represent Gomez without being subject to possible disbarment if: 1. The agreement provides that Paul is screened from any participation in the George lawsuit 2. The agreement provides Paul will receive no portion of any fee earned by the firm from the George lawsuit 3. Gomez sends copies of the proposed agreement to both her own client (George) and the City one week before Paul is hired 4. All of the above 0% 0% 0% 0%

51 U. Gomez can continue to represent Gomez without being subject to possible disbarment if: 1. The agreement provides that Paul is screened from any participation in the George lawsuit 2. The agreement provides Paul will receive no portion of any fee earned by the firm from the George lawsuit 3. Gomez sends copies of the proposed agreement to both her own client (George) and the City one week before Paul is hired 4. All of the above Correct. (1), (2) and (3) are all required under 1.11(a)

52 Assume that when Paul applied to work for the Sheldon firm, he told Gomez that he had been involved in George v Acme while at the Kirk firm but did not disclose any further information. Assume further that Georgia has amended GRPC 1.10 so that it is identical to the current ABA Model Rule 1.10.

53 V. Can Gomez can continue to represent George if the Sheldon firm hires Paul, even over the objections of Acme, without being subject to disbarment? 1. Yes, as long as Paul is screened from any participation in the George case 2. Yes, as long as Paul receives no portion of any fee earned by the firm in the George case 3. Yes, if both (1) and (2) are satisfied 4. No, because more than (1) and (2) are required to avoid disqualification of the entire firm 0% 0% 0% 0%

54 V. Can Gomez can continue to represent George if the Sheldon firm hires Paul, even over the objections of Acme, without being subject to disbarment? 1. Yes, as long as Paul is screened from any participation in the George case 2. Yes, as long as Paul receives no portion of any fee earned by the firm in the George case 3. Yes, if both (1) and (2) are satisfied 4. No, because more than (1) and (2) are required to avoid disqualification of the entire firm Correct. See ABA MR 1.10(a)(2)(ii)

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