Multistate Professional Responsibility Examination (MPRE) Advocacy, Litigation, and Dealings with Third Parties Syllabus

Advocacy, Litigation, and Dealings with Third Parties syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Advocacy, Litigation, and Dealings with Third Parties in Multistate Professional Responsibility Examination (MPRE), not a summary of it.

1. 1

   Duties to the Tribunal

   4 topics

   • Meritorious claims and frivolous contentions (Rule 3.1)
   • Candor toward the tribunal (Rule 3.3)
     • False statements of fact or law to the court
     • Disclosing adverse controlling authority
     • Offering false evidence and remedial measures
     • Duties in ex parte proceedings
   • Expediting litigation and fairness in discovery (Rule 3.2)
   • Client perjury and the criminal defendant
     • Knowledge of intended false testimony
     • Reconciling candor with confidentiality and the right to counsel
2. 2

   Fairness to Opposing Parties and Counsel

   3 topics

   • Fairness to the opposing party and counsel (Rule 3.4)
     • Obstructing access to or altering evidence
     • Falsifying evidence and unlawful inducements to witnesses
     • Disobeying obligations under the rules of a tribunal
   • Witness payments
     • Permissible expenses and fact-witness fees
     • Reasonable expert-witness compensation
   • Impartiality and decorum of the tribunal (Rule 3.5)
     • Improper influence of judges and jurors
     • Prohibited ex parte and post-trial juror communications
3. 3

   Trial Publicity and Special Prosecutorial Duties

   3 topics

   • Trial publicity (Rule 3.6)
     • Statements with a substantial likelihood of material prejudice
     • Permitted statements and the right of reply
   • Special responsibilities of a prosecutor (Rule 3.8)
     • Probable cause and protecting the accused's rights
     • Timely disclosure of exculpatory evidence
     • Post-conviction duties on new evidence of innocence
   • The lawyer as witness (Rule 3.7)
     • Advocate-witness rule and its exceptions
4. 4

   Transactions and Dealings with Nonclients

   3 topics

   • Truthfulness in statements to others (Rule 4.1)
     • False statements of material fact or law
     • Failure to disclose to avoid assisting client crime or fraud
   • Communication with represented and unrepresented persons (Rules 4.2, 4.3)
     • The no-contact rule and consent of counsel
     • Dealing with unrepresented persons and correcting misunderstandings
   • Respect for the rights of third persons (Rule 4.4)
     • No substantial purpose to embarrass, delay, or burden
     • Inadvertently sent documents and electronically stored information

Advocacy, Litigation, and Dealings with Third Parties flashcards for Multistate Professional Responsibility Examination (MPRE)

24 of 52 cards from the Advocacy, Litigation, and Dealings with Third Parties deck — real questions with worked answers.

1. Under Model Rule 3.1, when may a lawyer bring or defend a proceeding or assert an issue?

   Only when there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.

2. Is a claim 'frivolous' under Rule 3.1 merely because the lawyer believes the client's position will ultimately not prevail?

   No. An action is not frivolous even though the lawyer believes the client's position will not prevail, so long as there is a non-frivolous basis (e.g., a good-faith belief that facts can be established after reasonable inquiry).

3. What special exception does Rule 3.1 give to lawyers defending a criminal case (or any case that could result in incarceration)?

   Defense counsel may nonetheless so defend the proceeding as to require that every element of the case be established, even without a non-frivolous basis to contest each element.

4. Under Rule 3.2, what is a lawyer's duty regarding the pace of litigation?

   A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client.

5. Is the desire to obtain a tactical advantage or financial benefit a legitimate reason to delay litigation under Rule 3.2?

   No. Realizing financial or other benefit from a client's delay, or delay solely for tactical advantage, is not a legitimate interest of the client and violates Rule 3.2.

6. Under Rule 3.3(a)(1), what are a lawyer's two duties regarding false statements to a tribunal?

   A lawyer must not knowingly (1) make a false statement of fact or law to a tribunal, or fail to correct a false statement of material fact or law previously made by the lawyer.

7. Under Rule 3.3(a)(2), when must a lawyer disclose legal authority to the tribunal?

   A lawyer must disclose legal authority in the controlling jurisdiction known to be directly adverse to the client's position and not disclosed by opposing counsel.

8. Under Rule 3.3(a)(3), may a lawyer offer evidence the lawyer knows to be false?

   No. A lawyer must not knowingly offer false evidence. If the lawyer has offered material evidence and comes to know of its falsity, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

9. Under Rule 3.3, may a lawyer refuse to offer evidence (other than a criminal defendant's testimony) that the lawyer reasonably believes—but does not know—is false?

   Yes. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

10. What sequence of 'remedial measures' must a lawyer take under Rule 3.3 upon learning a client or witness has offered material false evidence?

    First, remonstrate with the client/witness to correct it; if that fails, consider withdrawal; if withdrawal won't remedy the situation, the lawyer must disclose the falsity to the tribunal.

11. Does the Rule 3.3 duty of candor override the duty of confidentiality under Rule 1.6?

    Yes. The duties in Rule 3.3(a) and (b) apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

12. How long does the duty of candor under Rule 3.3 continue?

    It continues to the conclusion of the proceeding, meaning until a final judgment has been affirmed on appeal or the time for review has passed.

13. Under Rule 3.3(b), what must a lawyer do upon knowing that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding (e.g., bribing a juror)?

    The lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

14. In an ex parte proceeding, what heightened duty does Rule 3.3(d) impose?

    The lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

15. What is the proper course when a criminal defendant insists on testifying falsely and the lawyer cannot dissuade him (the 'client perjury' problem)?

    The lawyer should seek to withdraw if possible; if withdrawal is denied, the lawyer must not assist the perjury and must take remedial measures, ultimately disclosing to the tribunal if necessary—candor under 3.3 prevails over confidentiality.

16. May a lawyer present a criminal defendant's known perjured testimony in 'narrative form' under the Model Rules?

    The narrative approach is not endorsed by the Model Rules; under Rule 3.3 the lawyer must not offer evidence known to be false and must take remedial measures, though some jurisdictions still permit the narrative method.

17. What is the constitutional backdrop (Nix v. Whiteman/Whiteside) on refusing to assist a defendant's perjury?

    In Nix v. Whiteside, the Supreme Court held that a defense lawyer's refusal to cooperate with the defendant's plan to testify falsely does not violate the defendant's Sixth Amendment right to effective assistance of counsel.

18. Under Rule 3.4(a), what is prohibited regarding evidence?

    A lawyer must not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or material having potential evidentiary value, nor counsel or assist another to do so.

19. Under Rule 3.4(b), what is prohibited regarding witness inducements and false evidence?

    A lawyer must not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

20. Under Rule 3.4(c), may a lawyer knowingly disobey an obligation under the rules of a tribunal?

    No, except for an open refusal based on an assertion that no valid obligation exists.

21. Under Rule 3.4(d), what discovery conduct is prohibited?

    A lawyer must not make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request from an opposing party.

22. Under Rule 3.4(e), what is prohibited during trial?

    A lawyer must not allude to matters not reasonably believed to be relevant or supported by admissible evidence, assert personal knowledge of facts in issue (except when testifying as a witness), or state a personal opinion as to justness of a cause, credibility of a witness, culpability, or guilt/innocence.

23. Under Rule 3.4(f), when may a lawyer request that a person other than a client refrain from voluntarily giving information to another party?

    Only if the person is a relative, employee, or agent of the client, AND the lawyer reasonably believes the person's interests will not be adversely affected by refraining.

24. What three categories of witness payments are permissible under Rule 3.4 and its comments?

    (1) Reasonable expenses incurred by a witness in attending/testifying; (2) reasonable compensation for a witness's loss of time; and (3) a reasonable fee for an expert witness's services.

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