PIEPER

MULTISTATE
PROFESSIONAL
RESPONSIBILITY
EXAM II

You have two hours to complete the following sixty

simulated MPRE questions.
 EXAM INSTRUCTIONS
The following practice exam consists of sixty (60) multiple choice questions for which you have two
hours to complete. Though some questions may take you longer than others, the exam allots you an
average of two minutes per question. Manage your time carefully. If you spend too much time on one or
more challenging questions, you may have difficulty completing the exam.

A brief factual scenario precedes each question. Read each scenario and the words of the question
carefully. Then, evaluate the four answer choices provided. You should select the best answer from the
choices provided.

All of your selected answers should be based on your knowledge of the disciplinary rules of professional
conduct currently articulated in the American Bar Association (ABA) Model Rules of Professional
Conduct, the ABA Model Code of Judicial Conduct, controlling constitutional decisions, generally
accepted principles established in leading federal and state cases, and in procedural and evidentiary rules.
To the extent that questions of professional responsibility arise in the context of procedural or evidentiary
issues, such as the availability of litigation sanctions or the scope of the attorney-client evidentiary
privilege, the Federal Rules of Civil Procedure and the Federal Rules of Evidence will be assumed to
apply, unless otherwise stated. This exam is not meant to test your personal ethical beliefs and values.

You will receive no credit for any answers or other markings made in the exam booklet. You will only
receive credit for correct answers marked on your answer sheet. You will not be given any additional
time to transcribe any of your answers from the exam booklet to your answer sheet.

If you do not know the answer to a question, you should choose an answer at random (guess) and record
that answer on your answer sheet. Your score is based on your total number of correct answers, and there
is no penalty for incorrect answers. Guessing when you do not know an answer will not hurt your score
and may actually improve it, so record an answer for each of the sixty questions.

You may only select one answer choice on your answer sheet. If two answer choices are marked you will
receive no credit, even if one of your choices was the correct answer.

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PIEPER EXAM II QUESTIONS

Question 1. Question 2.

After submitting briefs to the court on a An employer contacted an attorney whom he

contested motion in a multi-party suit and had met at a business luncheon, to inquire
while awaiting an order, an attorney read a whether the employer had a cause of action
recent decision by the highest court in the against one of his employees. The employer
relevant jurisdiction that directly was upset that the employee worked as a
contradicted the position she took in her landscaper on weekends for one of the
brief. The attorney, without consulting her employer’s competitors. The employer
client, immediately notified the court of the believed that there must be a penal law
recent appellate decision. prohibiting such divided loyalty.

Was the attorney’s conduct proper? The attorney, who was newly admitted and
had not handled any employment matters,
(A) Yes, if she also notified all of the was eager to please the employer. The
parties adversely affected by the attorney hoped that if he stopped the
recent decision. employee from working for the employer’s
(B) Yes, if she also notified those parties competitor, the employer would shift all of
submitting papers opposing the his legal work to the attorney’s firm.
attorney’s brief.
(C) Yes, if she also notified all parties in Knowing that there is no penal law
the lawsuit. prohibiting the employee’s weekend work,
(D) Yes, and she may leave party the attorney nonetheless told the employer
notification to the discretion of the that his instincts were correct and that the
court. employee’s actions were illegal. He then
sent a letter to the employee threatening to
bring the matter to the district attorney’s
attention for potential criminal prosecution.

Is the attorney subject to discipline?

(A) Yes, because the criminal claim was

not well-founded.
(B) Yes, because attorneys cannot
threaten criminal actions.
(C) No, because the employer may have
a civil claim against the employee.
(D) No, because the attorney was
zealously representing his client.

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Question 3. Question 4.

An attorney was a partner in a prominent Watts LLPC is one of the few firms in the
law firm and the Chairman of the Ways and country to specialize exclusively in
Means Committee in the State Legislature. environmental law. Its expertise is
The Committee is currently considering, and unequaled. Whenever a new associate joins
must decide, whether to permit gambling in the firm, the firm spends close to 200 hours
the state. tutoring the new associate. The associate is
made to read environmental regulations and
The attorney represents Hutton Hotels and the firm’s confidential memoranda of law in
assisted it in purchasing large tracts of real order to achieve the degree of expertise
estate in C City, the site of the proposed necessary to represent the firm’s clients.
gambling center. Prior to the vote regarding
gambling in C City, the attorney fully Having just graduated from a prestigious
informed Hutton’s board of directors that his law school, Wanda was offered a job with
representation of the hotel would in no way Watts LLPC at a starting salary of $160,000.
influence his thinking as a legislator and that As part of her employment contract, Wanda
it was very possible that he would vote agreed that, in the event she leaves the firm
against the bill. The chair of Hutton’s board within three years, she would not
said she fully understood, and the board still communicate with any of the firm’s clients
wanted the attorney’s expertise as a real or practice environmental law within New
estate lawyer. The hotel signed a written York City.
consent to the attorney’s dual role, and the
attorney continued representing Hutton in Is Watts LLPC or Wanda subject to
the hotel’s real estate transactions. discipline?

Is it proper for the attorney to represent (A) Only Watts is subject to discipline
Hutton? for trying to limit Wanda’s
communication with firm clients.
(A) Yes, if the attorney can truly separate (B) Only Watts is subject to discipline
his work for Hutton from his work for trying to limit Wanda’s
for the State Legislature. geographic area of practice.
(B) Yes, but he should refer the matter to (C) Only Watts is subject to discipline
an associate in his firm and elect not for both trying to limit Wanda’s
to share in any fees collected from communication with firm clients and
Hutton. her geographic area of practice.
(C) No, and he must cease representing (D) Both Watts and Wanda are subject to
Hutton. discipline for both trying to limit
(D) No, and he must refer the matter to Wanda’s communication with firm
another competent lawyer and clients and her geographic area of
receive only a forwarding fee. practice.

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Question 5. Question 6.

An attorney represented a wealthy builder A client owns an adult book store that sells
who converts rental apartments to occupant- magazines featuring nude people. The store
owned cooperatives. After a lengthy battle also contains booths that show pornographic
to convert a large apartment house to a films. It is located within 200 feet of an
cooperative apartment in Metropolitan City, elementary school.
the builder arrived at the attorney’s office
with two checks. The first check was A local law prohibits such establishments
payable to the attorney’s firm in full from operating within a 300-foot radius of a
satisfaction of the firm’s legal bill. The school, and the local building department
second check was for $50,000, payable to issued a citation to the client ordering him to
the attorney as a gift. cease operations.

If the attorney accepts both, is he subject to The client consulted an attorney. The
discipline? attorney believed that the statute was
unconstitutional as it applied to the
(A) Yes, because the attorney accepted a bookstore. Accordingly, the attorney agreed
large gift from a non-family member. to commence an action in the appropriate
(B) Yes, as is the builder, because the court to challenge the constitutionality of the
value of the gift was disproportionate statute. The attorney also advised the client
to the value of the services. that the client could either ignore or abide by
(C) No, but the builder is subject to the building department’s order while the
discipline because she is guilty of action was pending.
commercial bribery.
(D) No, because the attorney did not Is the attorney’s advice proper?
suggest or solicit the gift.
(A) Yes, because he has a good faith
belief in the client’s constitutional
argument.
(B) Yes, because the order is not from a
court.
(C) No, because he is instructing the
client to commit a crime.
(D) No, because he is instructing the
client to disobey an order.

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Question 7. Question 8.

A prosecutor recently obtained an A judge and her younger brother both live in
indictment against Jim, a school gym the same community. The judge has sat in
teacher, for sexually molesting a teenage the criminal court for 11 years, while her
student at the school. brother, who passed the bar exam three
years ago, is in private practice earning
As the prosecutor was leaving the substantially more money than the judge.
courthouse following a hearing unrelated to
the molestation matter, a television reporter The judge’s son, who has a psychiatric
stopped the prosecutor and asked him if he disorder, is in need of a private school
would comment on Jim’s pending education, and the judge’s husband wants to
prosecution. go back to school to earn a college degree.

The prosecutor told the reporter that “Jim On Thanksgiving, the judge’s brother told
has been indicted for sexual assault in the her that he just received a substantial
first degree.” He then pulled out a copy of contingent fee in a negligence case and is
the two-page indictment and read it. “rolling in bucks.” The judge asked her
brother for an interest-free, unsecured,
The prosecutor also stated that “Jim is substantial loan, and her brother agreed to
reported to have done this to at least ten lend her the money.
other teenage students.” The reporter then
asked the prosecutor to speculate on how Is the judge’s conduct proper?
long Jim might be incarcerated, and the
prosecutor replied, “if convicted, he faces up (A) No, because the loan was given on a
to 50 years in jail.” special occasion.
(B) No, because the gift of a substantial
Were the prosecutor’s comments proper? interest-free loan involves more than
ordinary hospitality.
(A) Yes, because they merely inform the (C) Yes, because the loan does not
public about the offense involved. interfere with the judge’s
(B) Yes, because they are all statements performance of judicial duties.
(D) Yes, because the brother is not likely
of undisputed fact. to come before the judge in court.
(C) No, because the comments about the
reports of his prior illegal conduct
may prejudice potential jurors.
(D) No, because a lawyer should not
speculate as to potential criminal
punishment.

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Question 9. Question 10.

An attorney worked for the state as an During a ten-day civil jury trial, an attorney
assistant attorney general in the civil noticed that the judge repeatedly fell asleep
division. In the course of a criminal on the bench, especially after lunch. On
investigation, the District Attorney’s office several occasions, the attorney asked to
received information from a criminal approach the bench to inquire as to whether
defendant that the defendant had sold the judge was ill. More often than not, the
marijuana to the attorney on more than 50 judge would scold the attorney and order
different occasions. him to sit down and continue with the trial.
The judge even threatened the attorney with
When the attorney was confronted with the contempt of court.
evidence, he admitted that it was true, but
honestly swore that his drug use never Eventually, the attorney learned that it was a
interfered with his professional duties. He common joke around the courthouse that the
pled guilty to the misdemeanor of unlawful judge would sleep during trials until
possession of marijuana. someone hollered “objection” to rouse the
judge.
Is the attorney subject to discipline?
What is the proper course of action for the
(A) Yes, because he is guilty of a attorney to take?
misdemeanor.
(B) Yes, because he repeatedly violated (A) Approach the judge alone in
the law. chambers and request that he see a
(C) No, because he did not use marijuana doctor.
while he was working and his (B) Say nothing unless the case goes
personal use did not affect his against his client, at which time he
performance on the job. can raise judge’s conduct in a request
(D) Yes, because he was a government for a new trial.
employee. (C) Contact the proper judicial
disciplinary body and other parties to
advise them of the situation.
(D) Notify the local newspaper of how
taxpayer money is being spent.

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Question 11. Question 12.

An attorney represented a class of plaintiffs After a heavily contested negligence and

injured by a medical device designed, wrongful death case in which an attorney
manufactured, and widely distributed by a represented the estate of the deceased
pharmaceutical company. At trial, the plaintiff, the jury returned a verdict in favor
attorney intends to call a total of 27 lay and of the defendant. Surprised, the attorney set
expert witnesses. out to locate the foreman of the jury. Once
he found the foreman, the attorney called her
The attorney made various compensation to see if she would be opposed to speaking
arrangements with each witness depending with him. The foreman had no objections
on the location from which the witness was and the attorney asked her the following
traveling and the time the witness was questions:
spending to prepare for and testify at trial.
In that regard, he agreed to reimburse each I Did any of the jurors visit the
witness for his or her airfare, hotel, meals, accident scene during the trial?
and reasonable lost wages. II Was there any misconduct
committed by the jury?
With respect to the expert witnesses, the III On what basis did the jury return the
attorney, who firmly believes that his case verdict favorable to the defendant?
will prevail if the jury simply understands
the intricate medical issues, has agreed to The foreman answered the first two
pay them a bonus if his case wins. questions in the negative and also stated that
Attempting to ensure that they are well the jury ruled in favor of the defendant
prepared without inviting accusations that he because they found the defendant’s expert to
paid for favorable testimony, the attorney be more convincing. The law of the
agreed to pay the bonus even if their appropriate jurisdiction permits lawyers to
testimony is unfavorable. communicate with discharged jurors.

Is the attorney subject to discipline? Was the attorney’s conduct proper?

(A) Yes, because a lawyer may only (A) Yes, because no law in the
reimburse a witness for travel, jurisdiction prohibits a lawyer from
lodging, and meal expenses. communicating with a discharged
(B) Yes, because agreeing to pay a bonus juror.
to witnesses upon a successful (B) Yes, because part of a juror’s duty is
verdict is prohibited. to assist counsel in determining
(C) No, because the compensation to the whether he or she has grounds for an
fact witnesses is reasonable and the appeal.
bonus will not influence the experts’ (C) No, unless he first suggested to the
testimony. foreman that she consult counsel.
(D) No, because a lawyer must pay what (D) No, because the Model Rules do not
a witness requires in exchange for permit a lawyer to question a juror
the inconvenience of testifying at about the jury’s basis for its verdict.
trial.

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Question 13. Question 14.

While a wealthy basketball player was on a An attorney agreed to represent a criminal

10-day road trip, the water pipes in his defendant. The defendant’s parents gave the
house burst when the boiler stopped attorney $1,000 for bail and a $300 retainer
functioning. The water caused substantial for his legal fees at $75 an hour. The
damage to the house. The basketball player attorney put the $1,300 into his escrow
notified his insurance company, but the account.
company declined to pay the damage
because the house was vacant when the The judge refused to release defendant on
accident occurred. The basketball player bail and the parents fired the attorney. They
retained an attorney who specializes in were very unhappy with the attorney’s
insurance coverage litigation to fight the results and demanded the return of the full
insurance company’s decision. $1,300. The attorney worked three hours on
the matter.
The attorney believed that the insurance
company’s liability was clear, that some What is the proper course of action for the
recovery was certain, and that as soon as he attorney to take?
started the action, the insurance company
would settle. The attorney and the (A) Continue to hold the $1,300 in
basketball player agreed to a contingency escrow until the fee dispute is
fee arrangement whereby the attorney would resolved.
earn one-third of any recovery. (B) Refund $1,000 and take $300 for
himself.
Is the fee arrangement proper? (C) Refund $1,075 and take $225 for
himself.
(A) No, because contingent fees are (D) Refund $1,075 and keep $225 in
available only in personal injury escrow.
cases.
(B) No, because contingent fee
arrangements are not available to
people who can afford to pay a fee.
(C) Yes, because contingent fees are
available in all cases.
(D) Yes, if the basketball player
understands how the fee is to be
calculated and signs a writing setting
forth the terms.

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Question 15. Question 16.

Approximately 100 guests were present at Airco operates a multi-million dollar nuclear
the high school graduation celebration for an power plant in C City. For over three
attorney’s 18-year-old daughter. Lilli, one decades, the plant has relied on a river that
of the guests, currently is serving as a juror runs past the plant and through C City to
in the midst of an antitrust case. Attorney cool the plant’s power-generating turbines.
Norman, another guest at the celebration, is
not involved in the suit, but is a member of In the past year, a great amount of media
the firm representing one of the parties at the attention has been devoted to statistics
trial. Attorney Carl, a sole practitioner and showing that an unusually high number of C
also a guest at the celebration, is in no way City residents suffer from a rare nervous
involved in the antitrust case. Indeed, system disorder linked to radiation exposure.
Attorney Carl’s practice exclusively C City’s residents and local politicians are
involves marital law issues. outraged, and a class action lawsuit has been
started against Airco. The plaintiffs,
Is it proper for Lilli to discuss the antitrust alleging various bodily injury and property
trial at the party? damage claims, believe that Airco’s
operations emitted radiation into C City’s
(A) Yes, but with Attorney Norman only. water system, causing them injury.
(B) Yes, but with Attorney Carl only.
(C) No, not with either. Airco has become very unpopular in C City,
(D) No, unless Lilli speaks in and, therefore, is unable to obtain a local
hypotheticals without revealing any lawyer to handle its defense. Upon Airco’s
privileged trial testimony. application, the court appointed an attorney
to defend Airco.

It is proper for the attorney to refuse the

case?

(A) Yes, if Airco’s acts are so repugnant

to her that her attorney-client
relationship is likely to be impaired.
(B) Yes, if the attorney has a neighbor
who is serving as a named plaintiff
in the class action.
(C) No, if she no longer wishes to defend
class action lawsuits.
(D) No, if she fears that Airco may
become insolvent as a result of the
suit and be unable to pay her fee.

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Question 17. Question 18.

Scabby Arms is the largest and notoriously An attorney was approached by a

most aggressive law firm in the country. It businessman. The businessman said that his
specializes in mergers and acquisitions, and neighbor’s son plays his stereo so loudly
it is widely considered the preeminent firm that it is disturbing the businessman’s wife.
in that area. When a company decides to The businessman complained to his
buy out or take over another, that company’s neighbor, to no avail.
first call is often to Scabby Arms.
The businessman has no intention of suing
Johnston & Johnston (J&J) is a large his neighbors because he does not want to
pharmaceutical company. It identified a incur the costs associated with going to
much smaller biotech firm as a target for a court and he wants to avoid any publicity.
hostile takeover. Last week, J&J’s CEO However, the businessman hopes that he
secretly met with a partner of Scabby Arms might solve the problem if the attorney
to discuss retaining the firm. The partner sends a letter to his neighbors threatening a
explained that the firm’s fee would be lawsuit.
considerably higher than the fee charged by
another firm in the area because of Scabby Would the attorney be subject to discipline
Arms’s superior skill and expertise, and for sending the letter?
because conflicts likely will arise from
working on this deal that will preclude (A) Yes, but only if the attorney acts
Scabby Arms from accepting other with malice.
employment on several potential deals. (B) Yes, because the attorney is
engaging in a misrepresentation and
Is the higher fee proper? deceit.
(C) No, if the businessman believes that
(A) Yes, but only if it is based on the grounds exist for bringing a valid
firm’s higher skill and reputation for suit.
excellence in mergers and (D) No, unless the neighbor’s son suffers
acquisitions. damages in reliance on the
(B) Yes, for both of the partner’s stated fraudulent misrepresentation.
reasons.
(C) No, because it is not commensurate
with fees charged by other firms for
the same work.
(D) No, because it is unreasonable.

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Question 19. Question 20.

An attorney has been in practice now for Alpha passed the bar exam and is now
several years. When he first opened his applying for admission to the bar. His
practice, the volume of his business was friend, Beta, is a newly admitted attorney,
low, and he kept very careful and tidy who just started a law practice. Alpha, who
records of his office expenditures and his has known Beta since childhood, asked Beta
client’s accounts. to be one of his character references. Beta,
happy and proud that Alpha asked her, filed
More recently, the attorney’s practice has a glowing recommendation with the
begun to grow, but not yet to the point character committee.
where he can afford to hire a secretary.
Consequently, his office and client accounts After submitting the recommendation, Beta
are now in disarray. When settlement and learned that Alpha was arrested in college
fee checks pile up on his desk, he has taken for the sale of drugs, a fact that Alpha does
to signing them and depositing them all in not plan to disclose to the character
his IOLTA account for safe keeping. The committee. Beta knows that Alpha has put
attorney knows that he may not shortchange the incident in his past and will never repeat
that account, so he figures it best to it. For that reason, she feels comfortable
overfund it with his personal funds until he with her recommendation and decides to
has a chance from time to time to balance leave it as it stands.
out the account. To date, he has not drawn
any funds from the account except for the Is Beta subject to discipline?
purpose for which those funds were
deposited. (A) Yes, because she made a
misrepresentation to the character
Is the attorney subject to discipline? committee.
(B) Yes, because she has a continuing
(A) Yes, because the attorney must have obligation to be truthful in her
a separate escrow account for each submissions to the character
client’s funds. committee.
(B) Yes, because the attorney (C) No, because her letter contained no
commingled his personal funds with misrepresentations of fact.
his escrow account. (D) No, because her letter, in good faith,
(C) No, because the attorney never contained facts known to her at the
misappropriated any of the funds for time.
his personal use.
(D) No, because the attorney never
misappropriated the funds for the
benefit of another client not entitled
to those funds.

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Question 21. Question 22.

A plaintiff commenced an action alleging After a successful run for re-election in a

nonpayment of overtime. Defense counsel hotly contested judicial election, a judge
stated that the plaintiff could not have resumed her judicial functions. She also
worked more than 40 hours, since the remained politically active within her local
defendant’s restaurant was in an “industrial political party because her term is for only
area”, was only open for breakfast and four years, meaning that her next election is
lunch, and was closed on weekends. The never far away.
judge was familiar with the area and
skeptical of defense counsel’s claim. In This month, the judge’s political party is
chambers, the judge checked Yelp and holding a rally to raise money for its
Google Maps which listed the operating candidates for the upcoming election. The
hours for defendant’s restaurant as 7:00 am judge purchased a ticket to the rally and
to 10:00 pm, seven days a week. plans to attend.

Is the judge’s internet search proper? Is the judge subject to discipline?

(A) Yes, because a judge may acquire (A) Yes, because a judge cannot be
information to educate the judge in affiliated with a political party when
making an adjudicative decision of the judge is not actively seeking re-
material fact. election.
(B) Yes, because using the internet is (B) Yes, because by attending the rally,
like a judge attending a judicial the judge will undermine the public
seminar. perception of the impartiality of the
(C) No, because a judge shall not bench.
investigate facts independently in a (C) No, because the judge will attend the
judicial matter. rally in her capacity as member of a
(D) No, because judges are prohibited political organization, not as a judge.
from using the internet. (D) No, because judges may make
contributions to, and attend the
rallies of, political organizations.

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Question 23. Question 24.

Last week’s newspaper announced that A labor attorney was an expert on coal
Attorney O’Malley was being seriously mining safety. For a two-year period more
considered for appointment to the bench by than 10 years ago, she represented the Coal
the state governor. Attorney DiPaolo is Miners’ Union in a suit to compel mine
aware that several years ago O’Malley was owners to negotiate in good faith under a
charged in another jurisdiction for suborning collective bargaining agreement. During
perjury, and more recently was divorced by that period, she wrote several law review
his wife because of an adulterous affair. articles on mine safety.

Attorney DiPaolo is friendly with O’Malley The attorney has now been retained by the
and believes O’Malley would make a terrific Coal Mine Owners’ Association to speak at
judge. While he considered raising the a legislative committee hearing in
charge of perjury and the affair with the opposition to federal regulations promoting
newspaper, Attorney DiPaolo decided that it coal mining safety.
was in everyone’s best interest that he
remain silent. Is it ethically proper for the attorney to
testify against the proposed coal mining
Is Attorney DiPaolo’s silence proper? safety regulations?

(A) No, because he is obligated to (A) Yes, because she has not recently
disclose his knowledge of represented an adverse client in the
O’Malley’s dishonesty. area.
(B) No, because he is required to (B) Yes, if the matter is not the same or a
disclose knowledge of adultery as it substantially related matter in which
bears negatively on O’Malley’s she represented the Coal Miners’
character. Union.
(C) Yes, because both issues are of (C) No, because testifying would require
public record. her to disclose confidences and
(D) Yes, because neither issue reflects on secrets she obtained while
O’Malley’s fitness for service on the representing the Coal Miners’ Union.
bench. (D) No, because her testimony will
conflict with the interests of her
former client.

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Question 25. Question 26.

A wealthy condominium developer retained A defendant retained an attorney in a

a law school professor to serve as an adviser negligence action. Before trial, the
to his corporation. Because of the defendant disclosed to the attorney that at
professor’s strong background in taxation the time of the accident, he was dead drunk.
and real estate law, she will not be required The defendant believes that by invoking his
to conduct much legal research. constitutional right against self-
incrimination and not testifying as to that
In determining what to charge for her fact, he will prevail in the suit. The attorney
services, the professor takes into believes, however, that the defendant’s
consideration her experience and position ultimately will not prevail at trial.
specialization in the field, what other
attorneys in the area charge for similar work, If the attorney does not withdraw from the
and the substantial financial resources of the representation of the defendant, is she
corporation. subject to discipline?

Is the method the professor used to (A) Yes, because she knows that the
determine her fee proper? defendant committed a crime.
(B) Yes, because she does not believe
(A) Yes, if the final fee is less than what that the defendant will prevail.
the corporation otherwise would (C) Yes, because the defendant’s guilt
have paid. and the attorney’s doubt place the
(B) Yes, because the professor is not attorney in a position where she
expending time researching. cannot zealously represent the
(C) No, if she charges a higher hourly defendant.
fee than would other lawyers in the (D) No, the attorney need not withdraw.
area for similar work.
(D) No, because the financial resources
of the client should not be considered
here.

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Question 27. Question 28.

Prior to his recent election as a full-time Attorney Alpha represents Firestone Tire
judge in the Family Court, a judge practiced Co. in defending a strict products liability
as an attorney handling trust and estates personal injury cause of action involving
matters for over two decades, and in more allegations of manufacturing flaws in
recent years, dedicating a portion of his Firestone’s tire making process. During a
practice to family law matters. massive document production, Alpha
inadvertently produced among thousands of
Since his election, the judge has withdrawn documents, an internal staff memorandum.
from his family law cases, though he The memo, which was over 100 pages in
continues to practice on a few matters that length, analyzed the controlling law and
are not before the Family Court. In that discussed the strengths and weaknesses of
regard, he is probating a will before the the pending case.
Surrogate’s Court and he is serving as the
executor of his friend’s will. The plaintiff’s lawyer, Attorney Beta, while
reviewing the boxes of documents in
Is the judge’s extrajudicial conduct proper? Alpha’s law offices, asked to have the
internal staff memo copied by a paralegal in
(A) Yes, but only as to the probate Alpha’s firm. Before making the copy, the
matter. paralegal telephoned Alpha who approved
(B) Yes, but only as to his service as an the copy without reviewing the memo,
executor. which had been identified to Alpha only by
(C) No, only if the conduct will likely a number stamp.
require the judge to before the
Family Court appear in the future. Two weeks later, Beta realized that Alpha
(D) No, because, as a full-time judge, he must have inadvertently produced the memo
should refrain from private practice without reviewing it. Beta also understands
and from serving as an executor. the importance of the memo to the litigation.

Is Beta subject to discipline?

(A) Yes, because the document was

protected by Firestone’s attorney-
client privilege and should not have
not been read.
(B) Yes, because the document was
attorney work product and Beta
knew it was inadvertently disclosed.
(C) No, if Beta promptly notifies Alpha
of the inadvertent disclosure.
(D) No, since the attorney-client
privilege was waived.

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PIEPER EXAM II QUESTIONS

Question 29. Question 30.

A newly appointed associate appellate judge An attorney was relaxing at the beach when
was approached by a law school alumnus he saw his neighbor limping near the water.
about a fundraising project for a new law The attorney asked his neighbor what had
school library. The judge agreed to attend happened to his leg. The neighbor explained
the fundraising dinner dance, and act as the that several years ago he had been hit by a
chairperson for planning purposes, but he negligently driven car, and that he had been
made clear to the law school that he could limping ever since.
not personally solicit funds from other
alumni. He did agree, however, to solicit Feeling sorry for his neighbor, the attorney
funds from fellow judges who sit on his agreed to write, without charge, a letter to
appeals court. driver of the car that had injured the
neighbor, demanding reimbursement for the
Is the judge’s conduct proper? neighbor’s injuries and threatening a
lawsuit. Even though the attorney knew that
(A) Yes, but only if he attends and plans the statute of limitations had expired on any
the event without soliciting any negligence claim that the neighbor had, the
donations. attorney still filed suit when the driver did
(B) Yes, but only if he attends and plans not respond to the letter. Again, the attorney
the event, and personally solicits did not charge the neighbor. Once suit was
only from his fellow judges. filed, the driver contacted the neighbor and
(C) No, because he may not attend a settled the matter by paying the neighbor a
fundraising event. sum near what the neighbor had lost due to
(D) No, if he personally solicits the accident.
donations from anyone.
Is the attorney subject to discipline?

(A) Yes, because he started the action

knowing that the statute of
limitations had expired.
(B) Yes, because he threatened litigation
in a letter to a non-represented
person.
(C) No, because he asserted a valid claim
on the neighbor’s behalf.
(D) No, because he did not collect a fee
from the neighbor.

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PIEPER EXAM II QUESTIONS

Question 31. Question 32.

A defendant, who was represented by An 80-year-old widow was hit by the

counsel in a criminal case, contacted another defendant’s car while she was crossing the
attorney to obtain a second opinion on how street. As a result of the accident, she
his case should be handled. At the incurred $20,000 in hospital expenses, and
conclusion of the meeting, the defendant undetermined damages for pain and
asked the attorney what his fee would be if suffering.
he took over the case. The attorney advised
the defendant that his fee would be $25,000, The widow retained an attorney to represent
but that if the attorney was not successful, her. The attorney, whose practice was
the attorney would refund one-half of the fee extremely busy at the time, ultimately failed
to the defendant. to commence an action against defendant
within the time allowed by the statute of
Is the attorney subject to discipline? limitations. Consequently, the widow’s
claim was time barred.
(A) Yes, for meeting with a person
known to be represented by another Is the attorney subject to discipline?
lawyer.
(B) Yes, for the proposed fee (A) Yes, but only if the statute of
arrangement. limitations expired within the last 30
(C) Yes, for both meeting with a person days.
known to be represented by another (B) Yes, because he neglected the
lawyer and the fee arrangement. widow’s matter.
(D) No. (C) No, and he is not subject to civil
liability.
(D) No, but he is automatically liable to
the widow for $20,000 as a matter of
law.

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PIEPER EXAM II QUESTIONS

Question 33. Question 34.

Alpha & Beta, P.C. (“A&B”), is a law firm A young child fell into a client’s swimming
that has represented big industry for many pool and was injured. The pool was
years. An attorney with the firm has teamed surrounded by a five-foot fence, but the gate
up with Dr. Enviro, a former environmental to the pool inexplicably had been left open.
engineer now serving as a lobbyist, to create
a lobbying firm, named AE Inc., for the After being served with a summons and
purpose of assisting industrial manufacturers complaint, the client realized that her
in voicing their opinions on proposed homeowner’s insurance policy had lapsed
environmental regulation. and that she had no insurance to cover the
A&B has referred clients in need of child’s claim. The fact that she could lose
lobbying assistance to AE Inc. In doing so, her home caused the client to become very
A&B has been diligent in explaining and anxious.
confirming in writing that AE Inc. is strictly
a lobbying firm, it does not provide legal The client retained an attorney to represent
services or advice, and communications with her in the lawsuit. After serving an answer
AE Inc. will not be protected by the and conducting pretrial discovery, the
attorney-client privilege. attorney put the case on the trial calendar.
Due to calendar backlog, the clerk told the
Bigco, a client of A&B, retained AE Inc. to attorney that the client’s case would not be
lobby for Bigco in connection with proposed assigned a trial date for months.
regulations which may impact on Bigco’s
business. The attorney exclusively assumed A month later, the client began telephoning
the lobbying efforts for Bigco. Separately, the attorney on a daily basis. At first, the
Rigco, another large industrial firm, hired attorney returned the client’s calls and
AE Inc. to handle its lobbying efforts in explained to her that her case was on hold
connection with the same regulations. due to the court’s backlog. When the client
Because Rigco’s interests in the proposed continued to call, the attorney told his
regulations are adverse to Bigco’s, Dr. secretary to advise the client that he would
Enviro exclusively will handle the lobbying call her only when something new
efforts of Rigco. developed. He also told his secretary to tell
the client that, unless she stopped repeatedly
Is the attorney subject to discipline? calling him, he would not return her calls.
(A) Yes, if he failed to obtain informed,
written consent from Bigco and Is the attorney’s conduct proper?
Rigco.
(B) Yes, because he is sharing legal fees (A) Yes, because a busy lawyer need not
with a nonlawyer. personally return phone calls.
(C) No, if he creates a sufficient barrier (B) Yes, because he reasonably kept his
between himself and Dr. Enviro. client informed.
(D) No, because A&B fully informed (C) No, because the attorney did not
Bigco that AE Inc. does not perform keep the client informed.
legal services and communications (D) No, because the attorney delegated a
with AE Inc. are not privileged. legal function to a nonlawyer.

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PIEPER EXAM II QUESTIONS

Question 35. Question 36.

An attorney was widely recognized both by An attorney who had been practicing for 16
the profession and by the public as being an years was holding $127,000 in client funds
excellent litigator. Her practice had reached in his attorney escrow account.
a point where she went from one trial to
another, almost without a day in between. The police recently arrested the attorney’s
son on drug possession charges, and bail
Two years ago, because of her hectic was set at $100,000. The attorney was
schedule, she consciously concluded that she unable to post the money.
would not, for the first time, file a tax return
or request an extension even though she On her deathbed, the attorney’s wife asked
knew she had overpaid her taxes and was to see her son. She was unaware of the drug
due a refund. She also knew it was against sale or her son’s incarceration. With the
the law not to file or request an extension to intent to have the money replaced within
file. seven days, the attorney took $100,000 from
his attorney escrow account and used it to
Is the attorney subject to discipline? post bail for his son.

(A) Yes, if the crime is a felony. After bringing his son to visit his mother for
(B) Yes, because willfully failing to file the last time, the attorney brought his son
an income tax return indicates a lack back to jail and returned the $100,000 to the
of fitness to practice law. escrow account, together with interest.
(C) No, because she knew she was due a
tax refund. Is the attorney subject to discipline?
(D) No, because her conduct did not
involve the practice of law. (A) Yes, because he used escrow funds
for personal purposes.
(B) No, because he immediately returned
the funds with interest.
(C) No, because he did not have a
criminal intent.
(D) No, because the attorney’s clients
suffered no loss.

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PIEPER EXAM II QUESTIONS

Question 37. Question 38.

An 18-year-old woman was injured in a car A wife consulted an attorney about

accident. While lying in traction in the obtaining a divorce from her husband. In
hospital, an attorney approached her and their initial discussions of the possibility of
asked her to allow him to represent her. He forming a client-lawyer relationship, the
fully explained his contingency fee, and the attorney did not disclose to the wife that he
woman agreed to the attorney’s was inexperienced in the area of
representation and fee. After getting out of matrimonial law and had never handled a
the hospital, the woman sought to terminate divorce case.
the representation and the attorney
immediately consented. After being retained by the wife, the
attorney had numerous settlement
Is the attorney subject to discipline? discussions with the husband’s lawyer.
During these discussions, the attorney did
(A) Yes, because he violated the Model not inquire about the husband’s pension
Rules of Professional Conduct. plan. Pension plans are an area into which
(B) No, because the bar is powerless to all matrimonial lawyers inquire, because a
discipline him absent a finding that pension plan is subject to the other spouse’s
the complained of conduct caused right to equitably share in such benefit in the
specific and actual harm. event of a divorce.
(C) No, because client solicitation is
constitutionally indistinguishable Only after the divorce was final did the wife
from advertising. consult another attorney and realize that, had
(D) No, because client solicitation is the attorney inquired into her ex-husband’s
constitutionally protected under the pension, the wife would have been entitled
First Amendment right to free to an additional $150,000 distribution from
speech. the pension plan.

Is the attorney subject to civil liability?

(A) Yes, because he did not tell the wife

he was inexperienced.
(B) Yes, because he did not inquire
about the wife’s pension plan rights.
(C) No, because lawyers are not strictly
liable for errors of judgment.
(D) No, if the wife was satisfied overall
with the outcome of the case.

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PIEPER EXAM II QUESTIONS

Question 39. Question 40.

As required under its liability insurance An attorney hired a legal secretary. After
policy, an insurance company provided an three weeks of on-the-job training, the
attorney to represent an insured who was secretary assumed the weekly duty of
named as a defendant in an automobile reviewing each file in the office and
collision case brought by a plaintiff. The advising the attorney of any deadlines for
attorney had represented other insureds on the coming seven-day period.
behalf of the insurance company in the past.
On one occasion, the secretary negligently
The plaintiff’s suit seeks damages in an permitted a time period to lapse on the
amount that is four times the maximum worker’s compensation claim of a client.
coverage of the policy. The insured also The client sued the attorney for malpractice
suffered personal injury and property and also filed disciplinary charges against
damage in the collision. him with the local bar association.

Through the investigation of the plaintiff’s Is the attorney subject to discipline?

claim and discussions with the insured, the
attorney determined that the insured may not (A) Yes, if the client obtains a
be entitled to any coverage under the malpractice judgment against him.
insurance policy. (B) Yes, if he failed to reasonably
supervise the secretary’s review
What is the proper course of action for the procedures.
attorney to take? (C) No, if similar mishaps occur to other
lawyers.
(A) Take no action that will jeopardize (D) No, because the client elected to
the insured’s protection under the pursue her malpractice claim rather
policy. than file a grievance.
(B) Seek and disclose information to
establish that the insured cannot
recover from the insurance company.
(C) Bring to the attention of the
insurance company any information
already in the attorney’s file
establishing a defense to the
insured’s potential insurance
coverage.
(D) Send copies of the attorney’s entire
file to the insurance company and the
insured and withdraw.

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PIEPER EXAM II QUESTIONS

Question 41. Question 42.

Attorney Alpha represented XYZ During his summation to the jury at the
Corporation in a lengthy antitrust lawsuit. conclusion of a lengthy trial, the
The outcome of the litigation could result in government’s lawyer referred to the
XYZ Corp. paying close to one billion testimony of the defendant’s two witnesses
dollars in penalties. by saying:
As the trial approached, Alpha realized that I “Their testimony directly contradicts
the testimony of Wilma, the retired the testimony given by the
comptroller of XYZ Corp., was critical in government’s witnesses.”
the litigation. Wilma was present at most of II “Who has more reason to lie, the
the meetings on which the trial would focus. government’s witnesses or the
Wilma has told Alpha that she does not want defendant’s witnesses?”
to be dragged into the lengthy trial. She has III “How can you believe these two
said that she will not appear even if ordered witnesses? I’ve seen many people
by the court. When Alpha told Peters, the testify over the years and, in my
President of XYZ Corp., of Wilma’s experience, these witnesses are
intention to refuse to testify at the trial, lying.”
Peters became enraged. “She’s got some IV “Frankly, I believe that the
nerve; she had a sexual affair for years with defendant’s witnesses are lying.”
me and now she pretends to be high and
mighty. Tell her that if she does not testify, Which of the government’s lawyer’s
you’ll reveal her scandalous sexual activity statements are proper?
to her husband.”
(A) I only.
Alpha called Wilma and told her that unless (B) I and II only.
she testified, Alpha would reveal her prior (C) III and IV only.
sexual indiscretions with Peters to her (D) I, II, III and IV.
husband.
Is Alpha subject to discipline?
(A) Yes, because Alpha used improper
means to obtain evidence.
(B) Yes, because Alpha should have
served Wilma with a subpoena
before threatening her with
disclosure of the affair.
(C) No, because Wilma had a legal duty
to testify when properly served with
a subpoena.
(D) No, if Wilma indeed had an affair.

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PIEPER EXAM II QUESTIONS

Question 43. Question 44.

An attorney hired a law student to assist him An inventor hired an attorney to represent
after school, on weekends, and during him in a patent infringement case. The
vacations in performing the following tasks attorney’s practice focuses primarily on
while she was is in court: business litigation, and he has never handled
a patent infringement case. The attorney
I Preparing discontinuance stipulations knew that no attorney in the geographic area
and settlement papers for the was competent in patent matters, including
attorney to discuss with clients. himself. However, he took the case.
II Interviewing witnesses to accidents
in personal injury actions. Is the attorney’s conduct proper?
III Settling personal injury claims with
insurance companies before the (A) No, because an attorney should
commencement of lawsuits. inform a client that he is not
competent in patent law.
For which of the above activities would the (B) Yes, if the attorney planned to
attorney be subject to discipline if she was become competent in the field of
aware they were occurring? patent law and if this would not be at
the expense of the inventor.
(A) I only. (C) Yes, because there were no other
(B) II and III only. patent lawyers in the area.
(C) III only. (D) Yes, because a lawyer should “not
(D) I, II and III. lightly decline employment.”

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PIEPER EXAM II QUESTIONS

Questions 45 and 46 are based on the Question 45.

following facts:
By disclosing this information, is the
An attorney who is a sole practitioner is attorney subject to discipline?
developing into a well-respected criminal
defense attorney. (A) Yes, because the lawyer to whom he
revealed the information was not a
Recently, two robbers held up a bank, and a member of the attorney’s law firm.
bank guard and one of the robbers was (B) Yes, because the attorney’s
killed. The police believe that the second confidentiality obligation to the
robber was wounded during the crime but suspect precludes the attorney’s
escaped, because a witness saw a man disclosure.
bleeding from a chest wound as he walked (C) No, because such disclosures are
calmly from the bank. permitted due to the importance of a
lawyer’s compliance with the Rules
A suspect with a criminal record retained the of Professional Conduct.
attorney to represent him. The police were (D) No, because the disclosure was made
looking for the suspect because two to another lawyer.
witnesses reported seeing him within blocks
of the bank with blood on his shirt. Question 46.

The suspect brought the attorney a Assume for this question that the attorney
bloodstained shirt. The suspect told the did not seek advice from the Ethics
attorney that while he was walking near the Committee. Assume further that the
bank the morning of the incident, an old attorney took the suspect’s shirt and had it
friend covered with blood bumped into him, tested.
getting blood on the suspect’s shirt. The old
friend said he had tripped and fallen on a Is the attorney subject to discipline?
curb and that he was headed to the hospital.
(A) Yes, because the attorney is
The attorney wanted to take the suspect’s unlawfully obstructing the police
shirt to have it tested by an expert to see if from access to critical evidence.
the bloodstains belonged to the suspect or to (B) Yes, because the attorney is
a third person. The attorney was not certain, hindering the prosecution of the
however, whether he could ethically take suspect, and the attorney is also
physical possession of potential criminal subject to criminal liability.
evidence. The attorney called the County (C) No, because the attorney is entitled
Bar Association and was referred to a to zealously represent the suspect.
member of the Ethics Committee. As (D) No, if applicable law allows the
cryptically as possible, Alpha disclosed the attorney to temporarily possess the
facts and asked whether he ethically can shirt to test the blood without
take physical custody of the shirt to have it altering or destroying the evidence.
tested.

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PIEPER EXAM II QUESTIONS

Question 47. Question 48.

An attorney agreed to represent a client in a A law firm’s partnership agreement

complex litigation which would consume provided that upon a vote of 80% of the
the ensuing three months in preparation for partners, a partner could be discharged from
the trial. the partnership, and that, for a period of one
year after such discharge, the partner would
Under the agreement, the attorney was to be paid, as her entire buy-out retirement
refrain from all other employment during the package, 150% of her preceding year’s
time period leading up to the trial. The fee salary.
was not fully determined, but the client
advanced $30,000. A partner was discharged from the firm in
accordance with the terms of the partnership
During the first month of trial preparation, agreement.
the attorney turned down $30,000 worth of
business. Into the second month, the Was the payment to the discharged partner
attorney and the client began to disagree proper?
about strategy and the client fired her. The
attorney refused to return any of the $30,000 (A) Yes, because the amount paid was
retainer. not excessive.
(B) Yes, because, although she was
Is the attorney subject to discipline? discharged, she was paid pursuant to
a separation or retirement agreement.
(A) No, because when a client breaches a (C) No, because the firm shared its legal
retainer agreement with an attorney, fees with one who did not work on
the client forfeits the retainer. the firm’s current cases generating
(B) No, if the retainer represents a those fees.
reasonable value for her services. (D) No, because the partner’s status as a
(C) Yes, because when she was fired, the partner was lost when she was
attorney forfeited all claims to fees. discharged.
(D) Yes, because, the fee was not
determined at the outset and not put
into writing.

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PIEPER EXAM II QUESTIONS

Question 49. Question 50.

An attorney’s practice focuses almost A professor of law at a local law school was
exclusively on tax certiorari matters. The an expert in the field of civil procedure. The
attorney generally seeks to obtain lower tax state bar association contacted him to
rates on residential and commercial conduct its upcoming continuing legal
properties owned by her clients. education seminar on civil procedure, and
asked that he compile all the information
One morning at about 4:00 a.m., the attorney necessary for that seminar. The bar
was awakened by a telephone call from one association does not intend to compensate
of her clients. The client had just been the professor for his services. Finals are
arrested for driving while intoxicated and approaching and the professor is busy, so he
sought the attorney’s advice on whether she is considering declining.
should consent to a breathalyzer test. The
attorney indicated she did not practice in this Is the professor subject to discipline if he
area and was really not competent to render declines the bar association’s request?
an opinion. The client said that she did not
care, the attorney had to help her as she had (A) Yes, if there are no other experts in
to consent within two hours of her arrest, the area.
and she had only four minutes remaining to (B) Yes, unless the seminar will not
make her decision. The attorney consented interfere with his duties as a lawyer
to help and told her not to take the test. and law professor.
(C) No, if he has already completed his
Unbeknownst to both the attorney and the yearly pro bono obligation.
client, a statute required the automatic (D) No, because the bar association’s
forfeiture of one’s driver’s license for failure request is not equivalent to a court
to take a breathalyzer test. As a result of not appointment.
taking the test, the client lost her license.

Is the attorney subject to discipline?

(A) Yes, because she was not adequately

prepared to render legal assistance.
(B) Yes, because she handled a legal
matter that she was not competent to
handle.
(C) No, because she explained her
deficiency and the client consented.
(D) No, because she acted in an
emergency situation.

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PIEPER EXAM II QUESTIONS

Question 51. Question 52.

A client inherited a substantial amount of Since Attorney Alpha’s admission to the
money. Not satisfied with her bank’s bar, Alpha has never practiced law. Alpha is
interest rates, the client decided to lend her employed by a large corporation that
money directly to private individuals, on the distributes filters for machines that purify
condition that the loans were secured by first blood. Alpha is a key executive for the
mortgages on real estate owned by the corporation, but his tasks do not in any way
borrowers. The client refused to settle for involve the practice of law.
second mortgages, because she knew that
they can be extinguished by foreclosure of Alpha is being sued for divorce by his wife,
the first mortgage on the same property. Spouse. Attorney Bravo is representing
Spouse. After commencing the divorce
The client hired an attorney to negotiate,
action, Spouse confides in Bravo that Alpha
draft, and record the necessary loan and
has a large assortment of homemade videos
mortgage documents to secure her first loan.
on his computer involving young children
After expending substantial time negotiating
engaged in inappropriate sexual activities.
with the first borrower’s attorney, the
Spouse advises Bravo that Spouse has
attorney determined that the existing first
observed Alpha watching these movies on
mortgage on the borrower’s realty could not
numerous occasions. Spouse also advises
be paid off and that the borrower could only
Bravo that Alpha has sexually abused their
tender a second mortgage to secure
eight-year-old son who is currently
repayment of the client’s loan.
undergoing psychiatric care due to the
Believing that a second mortgage on this trauma he has experienced because of
property was more than adequate security to Alpha’s misconduct.
secure the client’s loan, the attorney went
through with the loan transaction without Is Bravo subject to discipline if Bravo does
consulting the client. Both the client and not report Alpha’s conduct to appropriate
borrower signed the documentation, the loan disciplinary authorities?
was made, and the second mortgage was
recorded. (A) Yes, but only if Alpha is first
convicted of this private misconduct.
Is the attorney subject to discipline? (B) Yes, provided that Bravo has
obtained Spouse’s informed consent.
(A) Yes, but only if the borrower
(C) No, since Alpha’s misconduct does
defaults on the loan.
not reflect adversely on Alpha’s
(B) Yes, because the attorney did not
honesty, trustworthiness or fitness as
abide by the client’s decision.
a lawyer.
(C) No, because clients usually defer to
(D) No, because Alpha’s conduct was
the special knowledge and skill of
unrelated to the practice of law.
their lawyers with respect to the
means used to accomplish a given
objective.
(D) No, if the attorney acted with
reasonable diligence and promptness
in representing the client.

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PIEPER EXAM II QUESTIONS

Question 53 and 54 are based on the Question 53.

following facts:
Is the plaintiffs’ attorney subject to
An attorney represented multiple plaintiffs discipline for failing to disclose the
bringing personal injury claims against settlement allocation information to his
Rizco, the manufacture of a diabetes drug client?
that inflicted serious and sometimes lethal
damage on its users’ livers. (A) Yes, because his client’s consent was
not informed.
After pursuing the claims of the numerous (B) Yes, unless the disclosure could be
plaintiffs, Rizco advised the plaintiffs’ used to another class member’s
attorney that it would offer a lump sum of disadvantage.
$50,000,000 to settle all of his client’s (C) No, because the client consented in a
claims. Rizco gave plaintiffs’ attorney the signed writing to the settlement.
discretion to allocate the appropriate (D) No, because such information
amounts to each of his clients, provided that involving plaintiffs’ attorney’s other
all of them agreed to settle within the clients is subject to the attorney-
$50,000,000 aggregate settlement amount. client privilege belonging to the
other class members.
The plaintiffs’ attorney wrote to one of his
clients and advised her that a proposed
settlement had been offered by Rizco and
that two million dollars had been allocated
to his client’s claim. The client was elated
about the settlement amount she was
allocated, because she was a heavy drinker
of alcohol and did not think that her claim
would prevail if the matter was tried in
court. When the client inquired as to the
amounts allocated to each of the other
plaintiffs, the plaintiffs’ attorney told his
client that such information was
confidential, and that disclosure of it was
protected as a client confidence. The client
understood, consented to the settlement
amount, and signed a writing fully releasing
Rizco from further liability.

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PIEPER EXAM II QUESTIONS

Question 54. Question 55.

Assume for this question only that the A client was very displeased with his
plaintiffs’ attorney’s conduct in the attorney’s lack of professionalism,
settlement violated the Rules of Professional promptness, skill, and knowledge during his
Conduct. representation of the client in her divorce
action. Following the conclusion of her
After each of his clients had been paid and divorce, the client retained a new attorney to
the plaintiffs’ attorney received his sue her former attorney for legal
contingent fee, one of his clients learned malpractice.
what the other plaintiffs received. The client
now believes that she should have received a After the litigation had progressed to the eve
substantially larger amount. of trial, a settlement was reached in which:

Can the client recover the contingent fee I. The client and her former attorney
paid by the client to plaintiffs’ attorney as a agreed not to reveal the terms or the
result of the settlement? amount of the malpractice
settlement;
(A) Yes, because a violation of the Rules II. The client agreed as a condition to
of Professional Conduct the settlement not to testify against
automatically gives rise to civil her former attorney in the event a
liability. disciplinary proceeding was
(B) Yes, because a lawyer’s breach of a commenced against the former
duty to a client permits a court to attorney for his unethical conduct
order a forfeiture of a legal fee. during the client’s divorce action;
(C) No, unless the client suffered a loss and
proximately caused by the plaintiffs’ III. The new attorney agreed not to
attorney’s conduct. commence or participate in any
(D) No, because there is no separate future legal malpractice claim
cause of action for ethical against the former attorney by any
malpractice. future or former client of the former
attorney.

For which agreements will the former

attorney be subject to discipline?

(A) I and II only.

(B) II and III only.
(C) I, II and III.
(D) III only.

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PIEPER EXAM II QUESTIONS

Question 56. Question 57.

A judge was appointed to the trial court two Save-the-Children is a charitable organization
years ago. Previously, she had been a litigator devoted to the rights, health, and safety of
in a large firm that primarily represented children around the world. Save-the-Children
personal injury plaintiffs. The judge is has retained an attorney to draft the wills of
extremely well versed in and familiar with the potential donors who have indicated an intent
rules of evidence and civil procedure, to make a testamentary bequest to Save-the-
especially with respect to cases involving Children. The charity has agreed to pay the
personal injury. attorney’s standard fees for drawing such
wills.
In the two years while sitting on the bench, the
judge had gained the respect of the bar for her One recent day, Save-the-Children contacted
courtroom skill, knowledge, and temperament. the attorney to arrange for a donor, to come
The judge is adept at settling cases that needed into the attorney’s office to make out her will.
to be settled and at skillfully conducting trials The charity advised their attorney that the
and promptly rendering just and insightful donor had indicated an intent to make a
opinions where cases did not settle. testamentary bequest of $800,000 to Save-the-
Children. When the donor came in to discuss
Recently, after a complex antitrust trial, the her will, she initially indicated various donees
judge had lunch with another judge in the who would be named and benefit under her
same courthouse who is well versed in will. When she mentioned Save-the-Children,
antitrust matters. The judge sought out the the donor stated the sum of $100,000. The
antitrust-savvy judge’s assistance because she attorney then asked her whether in fact she
had never handled antitrust cases either as a had intended to leave the charity $800,000.
lawyer or judge. The other judge, who had a The donor replied, “maybe you are right,” and
reputation for being pro-business in the she increased the sum left to the charity to
antitrust legal community, was able to clarify $800,000.
and convince the judge to rule on several
issues in the case. Is the attorney subject to discipline?

Are the judge’s conversations with the other (A) Yes, because the attorney cannot
judge proper? represent both Save-the-Children and
its donor simultaneously.
(A) No, because the judge should not (B) Yes, because the donor’s informed
consider ex parte communications consent was not obtained and the
outside the presence of the parties or attorney is not exercising independent
their attorneys on a pending matter. professional judgment on the donor’s
(B) No, if the judge did not send a written behalf.
synopsis of the oral conversation to (C) No, because the attorney’s fee is being
the attorneys of both parties. paid by the charity, thus defeating the
(C) Yes, but only if both parties first donor’s reasonable expectation of
consented to the conversation. confidentiality.
(D) Yes, because the ex parte (D) No, because the donor had initially
communication prohibition does not wanted to give the charity $800,000.
apply to communications between
these judges.

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PIEPER EXAM II QUESTIONS

Question 58. Question 59.

A defendant was indicted for the armed One of the current matters pending before a
robbery of a deli that occurred last year on the judge involves a strip-mining violation
night of November 13th. The defendant and allegedly committed by the defendant. The
his attorney appeared at the arraignment, and defendant is represented by a large law firm,
the defendant pled not guilty to the indictment. and its lead counsel is one of the firm’s
The defendant told his attorney that, on the partners, Bravo.
night of November 13th, the defendant spent
the night at his mother’s house, eating dinner The judge’s law clerk has been substantially
and watching television. The defendant told involved in the strip-mining matter. Indeed,
his attorney that only he and the mother were since taking the position with the judge 14
home that night. months ago, the law clerk has devoted his time
almost exclusively to the strip-mining matter.
The attorney made arrangements for the
defendant’s mother to come into the attorney’s The clerkship is due to end in two months, and
office for an interview. After discussing the the law clerk has been exploring employment
defendant’s alibi defense with the defendant’s possibilities with private firms. Bravo has
mother, the attorney asked her if she become aware of the law clerk’s desire to
remembered spending that night with her son. work for a law firm. Bravo has been
She told defendant’s attorney that, “honestly, I impressed with his skills as the judge’s
don’t have a very good memory any more, and judicial law clerk, so much so that Bravo
I just don’t remember what I did that approached the law clerk to inquire as to
particular night. It is too long ago. Maybe it whether he would be interested in working for
will come to me.” Bravo’s firm.

In concluding the meeting with defendant’s What is the proper course of action for the law
mother, the attorney told her not to discuss clerk to take in order to negotiate with Bravo?
that night with anyone, especially someone
from the prosecutor’s office. (A) Obtain written consent to negotiate
from all parties in the strip-mining
Is the attorney subject to discipline? matter.
(B) Obtain written consent to negotiate
(A) Yes, because an attorney may not from the judge.
request that a witness refuse to give (C) Notify the judge.
relevant information to another party. (D) First resign from his clerkship
(B) Yes, because the attorney knowingly position.
interfered with an ongoing
government investigation.
(C) No, provided the attorney reasonably
believed that defendant’s mother’s
interest would not be adversely
affected by refraining from giving
such information.
(D) No, because the attorney may treat
defendant’s mother and instruct her as
his own client.

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PIEPER EXAM II QUESTIONS

Question 60.

An attorney agreed to represent a

corporation in a breach of contract suit
against a defendant who had been hired to
oversee construction of a new plant.

In the attorney’s written retainer letter, the

scope of the attorney’s services, the hourly
legal fee, and an estimate of the total cost for
legal fees and expenses were spelled out in
detail.

The attorney also included in the retainer

letter a clause that required binding
arbitration of any dispute concerning legal
fees, or any claim by the corporation against
the attorney for legal malpractice.

Is the attorney subject to discipline?

(A) Yes, because a lawyer cannot

prospectively attempt to limit the
lawyer’s malpractice liability to the
client.
(B) Yes, unless the corporation has been
fully apprised of the advantages and
disadvantages of arbitration and has
given its informed consent to the
arbitration clause.
(C) Yes, because it is against public
policy to submit such disputes to
binding arbitration.
(D) Yes, but only if the arbitration is
non-binding.

355