Multistate Professional Responsibility Examination (MPRE) Conflicts of Interest Syllabus

Under Rule 1.8(j), what is the rule on sexual relationships with clients?

A lawyer shall not have sexual relations with a client UNLESS a consensual sexual relationship existed between them before the client-lawyer relationship commenced. This is a personal, nonconsentable prohibition designed to protect the client from exploitation.

How does imputation work for Rule 1.8 conflicts under Rule 1.8(k)?

While lawyers are associated in a firm, a prohibition under paragraphs (a) through (i) that applies to any one of them applies to all of them (it is imputed). The sole exception is the Rule 1.8(j) sexual-relationship prohibition, which is personal and NOT imputed to other firm lawyers.

Under Rule 1.9(a), when may a lawyer represent a new client against a former client?

A lawyer who 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 former client, unless the former client gives informed consent, confirmed in writing.

What is the "substantial relationship" test under Rule 1.9?

Two matters are "substantially related" if (1) they involve the same transaction or legal dispute, OR (2) there is a substantial risk that confidential factual information the lawyer would normally have obtained in the prior representation would materially advance the new client's position in the subsequent matter.

For the substantial-relationship test, must the former client prove the lawyer actually received specific confidential information?

No. The test focuses on whether confidential information would normally have been obtained in the prior representation and whether it would be relevant; the former client need not reveal the actual confidences to prove the conflict (a presumption protects the former client).

Under Rule 1.9(b), when is a lawyer who has moved from a prior firm barred from representing a client adverse to a person the lawyer's FORMER FIRM represented?

The lawyer is barred if (1) the new matter is the same or substantially related to a matter the former firm handled, AND (2) the lawyer had actually acquired material confidential information (protected by Rules 1.6 and 1.9(c)) about that person, unless the former client gives informed consent confirmed in writing.

Why is the Rule 1.9(b) test for a migrating lawyer narrower than the 1.9(a) test for the lawyer's own former clients?

Under 1.9(a) the lawyer personally represented the client, so knowledge of confidences is presumed. Under 1.9(b), the lawyer only worked at the firm that represented the client, so the bar applies only if the lawyer actually acquired material confidential information—no irrebuttable presumption is applied to every firm lawyer.

Under Rule 1.9(c), what two duties continue toward a former client regarding information?

A lawyer who formerly represented a client (or whose firm did) shall not (1) use information relating to the representation to the disadvantage of the former client, except as the Rules permit/require or when the information has become generally known; nor (2) reveal information relating to the representation except as the Rules permit/require.

What is the "generally known" exception under Rule 1.9(c)(1)?

A lawyer may use information relating to a former client's representation to that client's disadvantage if the information has become generally known. Note: this exception applies only to USE, not to disclosure—the duty not to REVEAL former-client information has no "generally known" exception.

What form must a former client's conflict waiver take under Rules 1.9(a) and (b)?

Informed consent, confirmed in writing. (Unlike Rule 1.8(a)'s business-transaction consent, it need not be a writing signed by the client; oral consent later memorialized in writing suffices.)

Under Rule 1.10(a), what is the general imputation rule for conflicts within a firm?

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 or 1.9, unless the prohibition is based on a personal interest and does not present a significant risk of materially limiting the representation by the remaining lawyers (or the conflict is cured by screening under 1.10(a)(2)).

What is the "personal interest" exception to imputation under Rule 1.10(a)(1)?

A conflict based on the prohibited lawyer's personal interest is NOT imputed to the firm if it does not present a significant risk of materially limiting the representation of the client by the remaining lawyers. (E.g., one lawyer's strong personal belief, or the non-imputed 1.8(j) sexual-relationship bar.)

Under Rule 1.10(a)(2), how can a firm avoid imputation of a conflict brought by a newly-associated (lateral) lawyer?

By timely screening the personally-prohibited lawyer, ensuring that lawyer receives no part of the fee from the matter, and giving prompt written notice to the affected former client (with periodic certifications of compliance on request).

What does an effective ethical "screen" require?

Timely imposed isolation of the screened lawyer from any participation in the matter: no access to relevant files/information, no sharing of confidences, no fee from the matter, and written notice to affected parties. The screen must be in place before any disclosure occurs and maintained throughout.

Under Rule 1.10(b), when a lawyer leaves a firm, when may the FORMER firm take on a matter adverse to a client the departed lawyer had represented?

The firm is not prohibited from representing a person with interests materially adverse to a client of the formerly associated lawyer UNLESS (1) the matter is the same or substantially related, AND (2) any lawyer remaining in the firm has material confidential information protected by Rules 1.6 and 1.9(c). If no remaining lawyer has such information, the firm may proceed.

Under Rule 1.10(c)/(d), can imputed conflicts be waived?

Yes. A disqualification imputed under Rule 1.10 may be waived by the affected client under the conditions of Rule 1.7 (informed consent confirmed in writing). Conflicts involving former or current government lawyers are governed instead by Rule 1.11.

Under Rule 1.11(a), what conflict rule applies to a lawyer who formerly served as a public officer or government employee and now is in private practice?

Such a lawyer shall not represent a private client in a matter in which the lawyer participated personally and substantially while in government, unless the appropriate government agency gives informed consent, confirmed in writing.

Under Rule 1.11(b), how can a FIRM avoid imputed disqualification when it hires a former government lawyer who is personally barred under 1.11(a)?

The firm may take/continue the matter if (1) the disqualified former-government lawyer is timely screened and apportioned no part of the fee, AND (2) written notice is promptly given to the appropriate government agency to enable it to ensure compliance.

What is the "confidential government information" rule under Rule 1.11(c)?

A former government lawyer who acquired confidential government information about a person may not represent a private client whose interests are adverse to that person in a matter where the information could be used to that person's material disadvantage. The firm may continue if the lawyer is timely screened and gets no fee from the matter.

Under Rule 1.11(d), what conflicts rules apply to a lawyer CURRENTLY serving as a government officer or employee?

A current government lawyer is subject to Rules 1.7 and 1.9, and shall not (1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment (absent agency consent), nor (2) negotiate for private employment with a party (or that party's lawyer) involved in a matter in which the lawyer is participating personally and substantially.

How is the Rule 1.11 government-conflict standard different from the general 1.10 imputation regime?

Rule 1.11 turns on whether the lawyer participated "personally and substantially" in a specific matter (not the broad "substantially related" test), and it permits the firm to cure imputation by screening + no fee + notice WITHOUT the former client/agency's consent—screening is automatically available, unlike under the basic 1.10 rule.

Under Rule 1.12(a), what is the conflicts rule for a former judge, arbitrator, mediator, or other third-party neutral?

Such a person shall not represent anyone in connection with a matter in which the person participated personally and substantially as a judge, other adjudicative officer, or third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

Is a party-appointed arbitrator in a multi-member panel covered by the Rule 1.12 prohibition?

No. Rule 1.12(d) provides that an arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party. The 1.12(a) bar applies to neutral adjudicators/arbitrators.

Under Rule 1.12(b), what restriction applies to a judge or neutral negotiating future employment?

A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge, adjudicative officer, or neutral. (A law clerk may negotiate but only after notifying the judge/neutral.)

Under Rule 1.12(c), how can a firm avoid imputation when it hires a former judge or neutral who is personally disqualified?

The firm may take/continue the matter if the personally-disqualified lawyer is timely screened and apportioned no part of the fee, AND written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance.

Under Rule 1.13(a), who is the client when a lawyer represents an organization?

The organization itself (acting through its duly authorized constituents) is the client—not the officers, directors, employees, members, or shareholders individually. The lawyer's duties run to the entity.

Under Rule 1.13(b), what must a lawyer for an organization do upon learning that a constituent is engaged in action that is a violation of law likely to result in substantial injury to the organization?

The lawyer must proceed as is reasonably necessary in the best interest of the organization—ordinarily by referring the matter up the chain of authority ("reporting up"), including, if warranted, to the highest authority that can act (e.g., the board of directors).

Under Rule 1.13(c), when may an organization's lawyer report a violation OUTSIDE the organization ("reporting out")?

If the highest authority fails to act, and the lawyer reasonably believes the violation is reasonably certain to result in substantial injury to the organization, the lawyer MAY (not must) reveal information relating to the representation—whether or not Rule 1.6 permits it—but only to the extent reasonably necessary to prevent the injury. (Not available where the lawyer was hired to investigate or defend the violation.)

Under Rule 1.13(f) and (g), what must an organization's lawyer do when dealing with constituents, and may the lawyer also represent a constituent individually?

The lawyer must explain the identity of the client (the entity) when the lawyer knows or reasonably should know the organization's interests are adverse to the constituent (the corporate Miranda/"Upjohn" warning). The lawyer MAY also represent a constituent (officer, director, employee) individually, subject to Rule 1.7; if dual representation is undertaken, consent must be given by an appropriate official other than the individual being represented.

How does a former-client conflict (Rule 1.9) differ from a concurrent-client conflict (Rule 1.7) in the level of adversity required?

Rule 1.7 (current clients) bars representation that is "directly adverse" OR involves a significant risk of "material limitation," even in unrelated matters. Rule 1.9 (former clients) bars representation only in the "same or substantially related" matter where interests are "materially adverse"—a former client may be opposed in unrelated matters without consent.