Multistate Professional Responsibility Examination (MPRE) The Client-Lawyer Relationship Syllabus

Besides negligence, name common non-disciplinary bases for civil liability arising from the client-lawyer relationship.

Breach of fiduciary duty, breach of contract, and fraud. A lawyer may also face fee forfeiture for serious breaches of duty.

May a lawyer prospectively limit malpractice liability to a client? (Rule 1.8(h))

Only if the client is independently represented in making the agreement. A lawyer must not settle a malpractice claim with an unrepresented/former client unless that person is advised in writing that independent counsel is desirable and given a chance to seek it.

List the four communication duties imposed by Rule 1.4(a).

A lawyer must (1) promptly inform the client of decisions requiring informed consent, (2) reasonably consult about means, (3) keep the client reasonably informed about status, and (4) promptly comply with reasonable requests for information. Also notify when client expects assistance not permitted by the Rules.

What does Rule 1.4(b) require regarding explanations to the client?

A lawyer must explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.

Under Rule 1.4, must a lawyer communicate a settlement or plea offer to the client?

Yes. A lawyer must promptly inform the client of any plea bargain or settlement offer (a decision reserved to the client) unless the client has previously indicated the offer would be acceptable or unacceptable.

May a lawyer ever delay or withhold information from a client under Rule 1.4?

Limited circumstances—e.g., when the client would be likely to react imprudently to immediate communication, or when a court order or other law (rarely) requires withholding. A lawyer may not withhold information to serve the lawyer's own interest or convenience.

Under Rule 1.14, how must a lawyer treat a client with diminished capacity?

As far as reasonably possible, the lawyer must maintain a normal client-lawyer relationship with the client.

When may a lawyer take PROTECTIVE ACTION for a client with diminished capacity? (Rule 1.14(b))

When the lawyer reasonably believes the client (1) has diminished capacity, (2) is at risk of substantial physical, financial, or other harm unless action is taken, and (3) cannot adequately act in the client's own interest.

What protective actions are authorized under Rule 1.14(b)?

Reasonably necessary measures such as consulting individuals/entities that can protect the client and, in appropriate cases, seeking appointment of a guardian ad litem, conservator, or guardian. The lawyer should use the least restrictive action.

How does Rule 1.14(c) treat confidentiality when a lawyer takes protective action?

The lawyer is impliedly authorized to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests, even though doing so may otherwise be protected under Rule 1.6.

Define 'informed consent' as used throughout the Rules (Rule 1.0(e)).

Informed consent is agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed conduct.

What is the difference between 'informed consent' and 'informed consent, confirmed in writing'?

Informed consent can be oral; 'confirmed in writing' means the consent is given orally and then memorialized in a writing (which may be the lawyer's writing sent within a reasonable time). Some rules require a writing 'signed by the client' (a higher bar).

Name three recurring situations in the Rules that require client informed consent.

Examples: limiting the scope of representation (1.2(c)), waiving a conflict of interest (1.7, 1.9), revealing confidential information in certain situations, aggregate settlements (1.8(g)), and using a client's information to the client's disadvantage. Many conflict waivers require informed consent confirmed in writing.

Under Rule 1.16(a), list the three situations of MANDATORY withdrawal.

A lawyer MUST withdraw (or decline) if: (1) continuing would violate the Rules or other law, (2) the lawyer's physical or mental condition materially impairs the ability to represent the client, or (3) the lawyer is discharged by the client.

Does a client have an essentially unqualified right to discharge a lawyer? (Rule 1.16)

Yes. A client may discharge the lawyer at any time, with or without cause, triggering mandatory withdrawal—though the client may remain liable for fees earned and a court's permission may be required if litigation is pending.

Under Rule 1.16(b)(1), when may a lawyer withdraw WITHOUT needing any specific justification?

A lawyer may withdraw for any reason if withdrawal can be accomplished without material adverse effect on the client's interests.

List grounds for PERMISSIVE withdrawal under Rule 1.16(b) even if there IS material adverse effect on the client.

(1) Client persists in a criminal/fraudulent course using the lawyer's services; (2) client used the lawyer's services to commit a past crime/fraud; (3) client insists on action the lawyer finds repugnant or with which the lawyer has a fundamental disagreement; (4) client fails substantially to fulfill an obligation (e.g., pay fees) after reasonable warning; (5) representation will result in an unreasonable financial burden or has been rendered unreasonably difficult by the client; or (6) other good cause exists.

Even when grounds for withdrawal exist, when must a lawyer continue representation? (Rule 1.16(c))

A lawyer must comply with applicable law requiring notice to or permission of a tribunal; if the tribunal orders the lawyer to continue, the lawyer must do so notwithstanding good cause for terminating.

What duties does a lawyer owe to the client UPON TERMINATION? (Rule 1.16(d))

Take reasonable steps to protect the client's interests: give reasonable notice, allow time to obtain other counsel, surrender papers and property the client is entitled to, and refund any advance payment of fee or expense that has not been earned or incurred.

Upon termination, may a lawyer retain the client's file to secure payment of unpaid fees?

Under the Model Rules, the lawyer must surrender papers and property to which the client is entitled. Retaining liens are governed by other law and are limited or prohibited in many jurisdictions; the lawyer generally cannot hold the file hostage if doing so prejudices the client.

Compare mandatory vs. permissive withdrawal in one sentence.

Mandatory withdrawal (Rule 1.16(a)) is required—continued representation would violate law/Rules, the lawyer is impaired, or the client discharges the lawyer; permissive withdrawal (Rule 1.16(b)) is optional and allowed for enumerated good-cause reasons or when no material harm results.

What is the standard of care a lawyer must meet to avoid malpractice liability?

The lawyer must exercise the competence and diligence normally exercised by lawyers in similar circumstances—i.e., the skill, knowledge, and care of a reasonably prudent attorney.

How does the duty of competence (1.1) differ from the duty of diligence (1.3)?

Competence concerns whether the lawyer HAS and applies the necessary knowledge, skill, thoroughness, and preparation; diligence concerns whether the lawyer ACTS promptly and pursues the matter with commitment. A lawyer can be competent yet not diligent, and vice versa.

When a lawyer reasonably believes a client with diminished capacity is being exploited, may the lawyer disclose to protect them?

Yes—under Rule 1.14(c), the lawyer may reveal confidential information to the extent reasonably necessary to protect the client, including consulting others or seeking appointment of a guardian; disclosure must be limited to what protection requires.

If a client insists the lawyer pursue an objective the lawyer considers imprudent but legal, what are the lawyer's options?

The lawyer must follow the client's lawful objectives (the client controls objectives under 1.2(a)). If the lawyer fundamentally disagrees or finds it repugnant, the lawyer's recourse is permissive withdrawal under Rule 1.16(b)(4)—not unilaterally overriding the client.

Does merely consulting a lawyer for a free consultation make someone a 'client' for duty purposes?

Even if no full relationship forms, the person is a 'prospective client' (Rule 1.18) owed duties of confidentiality and limited conflict protection. A full client relationship requires reasonable reliance on the lawyer's agreement to provide services.

Under Rule 1.2(c), give an example of a permissible limited-scope representation.

A lawyer agrees to draft a contract but not to advise on tax consequences, or provides 'ghostwriting'/coaching for a pro se litigant—permissible if reasonable under the circumstances and the client gives informed consent.

What is the consequence for a lawyer who knowingly assists a client's fraud through documents the lawyer prepared?

The lawyer violates Rule 1.2(d), may face discipline and civil/criminal liability, must withdraw under Rule 1.16, and may need to disaffirm or withdraw the opinions, documents, or representations (noisy withdrawal) to avoid assisting the fraud.

Under Rule 1.4, what must a lawyer do if a client expects assistance that the Rules or law do not permit?

The lawyer must consult with the client about the relevant limitation when the lawyer knows the client expects assistance not permitted by the Rules of Professional Conduct or other law.

In a malpractice suit arising from underlying litigation, what does the 'case-within-a-case' (trial-within-a-trial) require the plaintiff to prove?

That, but for the lawyer's negligence, the client would have obtained a more favorable result in the underlying matter—i.e., the plaintiff must prove both the lawyer's negligence and that the original claim/defense would have succeeded.