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

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.

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.

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.

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.

Is it ever permissible to pay a fact witness a fee contingent on the content of testimony or the outcome of the case?

No. Paying an occurrence (fact) witness a contingent fee, or any fee contingent on the content of testimony or the case outcome, is improper.

May an expert witness be paid a fee contingent on the outcome of the litigation?

No. An expert may be paid a reasonable fee for services, but the fee may not be contingent on the outcome of the case.

Under Rule 3.5(a), what is prohibited regarding influencing officials?

A lawyer must not seek to influence a judge, juror, prospective juror, or other official by means prohibited by law (e.g., bribery or improper gifts).

Under Rule 3.5(b), when may a lawyer engage in ex parte communication with a judge or juror?

Only when authorized to do so by law or court order; otherwise ex parte communication during the proceeding is prohibited.

Under Rule 3.5(c), what are the limits on communicating with a juror AFTER discharge of the jury?

A lawyer must not communicate with a discharged juror if (1) communication is prohibited by law or court order, (2) the juror has made known a desire not to communicate, or (3) the communication involves misrepresentation, coercion, duress, or harassment.

Under Rule 3.5(d), what conduct toward the tribunal is prohibited?

A lawyer must not engage in conduct intended to disrupt a tribunal.

Under Rule 3.6(a), what is the general standard limiting trial publicity?

A lawyer participating in a matter must not make an extrajudicial statement the lawyer knows or reasonably should know will be publicly disseminated and have a substantial likelihood of materially prejudicing an adjudicative proceeding.

List several statements a lawyer MAY safely make under the Rule 3.6(b) 'safe harbor.'

The claim/offense/defense involved and identity of persons (except where prohibited); information in a public record; that an investigation is in progress; scheduling or result of any step in litigation; a request for assistance in obtaining evidence; and a warning of danger when there is reason to believe a person is likely to be endangered.

What is the Rule 3.6(c) 'right of reply' provision?

A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the client; the statement must be limited to such information as is necessary to mitigate the adverse publicity.

Does Rule 3.6 apply to lawyers in the same firm or government agency as the lawyer handling the case?

Yes. Under Rule 3.6(d), no lawyer associated in a firm or government agency with a lawyer subject to 3.6(a) may make a prohibited statement.

Under Rule 3.7(a), the 'lawyer as witness' rule, what is the general prohibition?

A lawyer must not act as advocate at a trial in which the lawyer is likely to be a necessary witness.

What are the three exceptions to the lawyer-as-witness rule under Rule 3.7(a)?

(1) The testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification would work a substantial hardship on the client.

Under Rule 3.7(b), may a lawyer act as advocate when another lawyer in the firm is likely to be a witness?

Yes. A lawyer may act as advocate even though a firm member is likely to be called as a witness, unless precluded by the conflict-of-interest rules (Rule 1.7 or 1.9).

Why does the lawyer-as-witness rule exist (its rationale)?

To avoid jury confusion over the dual role of advocate and witness, prevent prejudice to the opposing party, and avoid the appearance that the advocate is distorting the truth or compromising the client's interests.

List the special responsibilities of a prosecutor under Rule 3.8(a) and (b).

(a) Refrain from prosecuting a charge the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure the accused has been advised of the right to, and procedure for obtaining, counsel and given a reasonable opportunity to obtain counsel.

Under Rule 3.8(c), what must a prosecutor not do regarding an unrepresented accused's rights?

The prosecutor must not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.

What is the prosecutor's disclosure duty under Rule 3.8(d) (the 'Brady'-type rule)?

The prosecutor must make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in sentencing, disclose unprivileged mitigating information.

Under Rule 3.8(e), when may a prosecutor subpoena a lawyer to present evidence about a past or present client?

Only if the prosecutor reasonably believes the information is not privileged, the evidence is essential to the investigation/prosecution, and there is no other feasible alternative to obtain it.

Under Rule 3.8(f), what limits apply to a prosecutor's extrajudicial statements?

A prosecutor must refrain from making extrajudicial comments with a substantial likelihood of heightening public condemnation of the accused and must take reasonable care to prevent investigators, police, and others assisting from making such statements.

Under Rule 3.8(g)-(h), what must a prosecutor do upon learning of new, credible evidence that a convicted defendant may be innocent?

Disclose the evidence to the appropriate court/authority and, if the conviction was in the prosecutor's jurisdiction, notify the defendant and investigate; and (h) if clear and convincing evidence shows the defendant was wrongly convicted, seek to remedy the conviction.

Under Rule 4.1(a), what is a lawyer prohibited from doing in dealings with others?

In the course of representing a client, a lawyer must not knowingly make a false statement of material fact or law to a third person.

Under Rule 4.1(b), when must a lawyer disclose a material fact to a third person?

When disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 (confidentiality).

Under Rule 4.1, are 'estimates of price or value' and a 'party's intentions as to settlement' considered statements of material fact?

No. Under generally accepted negotiation conventions, certain statements—such as estimates of price/value placed on a transaction and a party's intentions about acceptable settlement—are not ordinarily taken as statements of material fact (i.e., permissible 'puffery').

State the general no-contact rule of Rule 4.2.

In representing a client, a lawyer must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of that person's lawyer or is authorized by law or court order.

Under Rule 4.2, when a represented person is an organization, which constituents are off-limits for contact?

Those who supervise, direct, or regularly consult with the organization's lawyer about the matter; those with authority to obligate the organization regarding the matter; and those whose act or omission may be imputed to the organization for liability purposes.

Under Rule 4.3, what must a lawyer do when dealing with an unrepresented person who misunderstands the lawyer's role?

The lawyer must not state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know the person misunderstands the lawyer's role, the lawyer must make reasonable efforts to correct the misunderstanding, and must not give legal advice (other than to secure counsel) if the person's interests conflict with the client's.

Under Rule 4.4(a), what limits apply to using means that have no substantial purpose other than to burden a third person?

A lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

Under Rule 4.4(b), what must a lawyer do upon receiving a document or electronically stored information that was inadvertently sent?

A lawyer who knows or reasonably should know the document/ESI was inadvertently sent must promptly notify the sender.