CLEC common mistakes
CLEC · Understand the traps and how to avoid them.
Treating every disclosure of client information as a per se violation, so the candidate answers "no disclosure ever" even when the facts involve implied authorization, a dispute over the lawyer's own fee, or a crime-fraud exception.
Candidates memorize confidentiality as an absolute slogan and never learn the recognized exceptions and the distinction between the broad duty of confidentiality and the narrower evidentiary privilege.
What to do instead
Before answering, classify the information: is it protected by privilege, by the duty of confidentiality, or both? Then ask which exception the facts trigger (client consent, implied authorization to carry out representation, self-defense in a fee or malpractice dispute, court order, or prevention of a future crime). Write the exception you are relying on in one sentence before selecting an answer.
Detecting a conflict only between two current clients, and missing that a former client's substantially related matter, a personal interest of the lawyer, or a prospective client consultation can also disqualify.
Candidates learn the concurrent-conflict rule first and anchor on it, so they screen out fact patterns involving former clients, lawyer-owned businesses, or a failed pitch meeting with a would-be client.
What to do instead
Run a fixed four-step screen on every conflict question: current client versus current client; current versus former; lawyer's own personal, financial, or familial interest; and prospective client. For each, ask separately whether the conflict is consentable and whether consent must be confirmed in writing, and whether a former client's consent is required at all.
Answering a competence question by asking only whether the lawyer had the knowledge or skill, and ignoring whether the lawyer failed to investigate the facts or to keep up with changes in the law.
Competence is taught as a subject-matter expertise test, so candidates overlook the fact-investigation and legal-research prongs and miss answers about inadequate discovery, stale research, or failure to consult an expert.
What to do instead
Test competence on three prongs: legal knowledge and skill, thoroughness and preparation of the facts, and staying current with legal developments. If any prong fails, ask whether the lawyer cured it by associating with or consulting a competent lawyer, which is permitted if the client consents and the fee arrangement is explained.
Treating a client's failure to respond or a lawyer's busy schedule as an excuse for delay, and choosing an answer that says the lawyer may wait until the client follows up.
Diligence questions are written so that the delay looks reasonable in isolation, and candidates rationalize it instead of measuring it against the standard of promptness and the duty to keep the client reasonably informed.
What to do instead
Whenever the facts show a deadline, a pending motion, or a client request for status, ask what a reasonably prompt lawyer would do this week. Select the answer that includes both action and communication; reject any answer that conditions the lawyer's diligence on the client's prompting.
Approving a fee that is described only as a percentage or a flat amount without checking whether it is reasonable in light of time, novelty, results, and the client's sophistication, or without confirming the writing requirement for contingent fees.
Candidates treat any fee the client agreed to as automatically permissible and forget that reasonableness is an independent requirement that cannot be waived by consent.
What to do instead
Apply the reasonableness factors explicitly, then check the formal requirements: contingent fees generally require a written agreement stating the method of calculation and the expenses deducted, and the agreement must be explained and signed. Also check whether the fee is being taken from client funds, which triggers notice and accounting duties.
Commingling client funds with firm operating money, or using one client's funds to cover another client's shortfall, and then treating the shortfall as a bookkeeping problem rather than a disciplinary violation.
Candidates conflate trust accounting with ordinary business accounting and do not know that client funds must be held separately and that shortages are strict-liability violations regardless of intent.
What to do instead
Memorize the irreducible rules: client funds go in a dedicated trust account, the lawyer's own funds may be deposited only in amounts needed to cover bank charges, earned fees are withdrawn only after notice to the client, and any shortage is remedied immediately and reported. On exam questions, identify the moment of commingling or shortfall and treat it as a violation even if the client is ultimately repaid.
Failing to correct a client's or witness's false statement to the tribunal because the candidate believes the lawyer must keep the client's confidences absolutely, even in the face of perjury or a fraudulent filing.
The confidentiality and candor duties are taught in separate chapters, so candidates never practice the situation where the two collide and do not know the remedial steps available to the lawyer.
What to do instead
When a client has testified falsely or intends to, work through the remedial ladder in order: try to persuade the client to correct it, then seek withdrawal if the representation can be terminated, then disclose to the tribunal only the information necessary to remedy the fraud, subject to the limits on revealing privileged information. Know that the lawyer may not offer evidence the lawyer knows is false.
Missing that a communication is a prohibited solicitation because it targets a specific person known to need legal services in a particular matter, even when it is framed as a general announcement or sent through a third party.
Candidates focus on the medium (mail, email, social media) instead of the targeting, and they forget that a agent or runner making the contact on the lawyer's behalf is equally prohibited.
What to do instead
Ask two questions: is the recipient a specific person known to need legal services in a particular matter, and is the motive pecuniary gain? If both are yes, it is solicitation unless a recognized exception applies (for example, a close personal or prior professional relationship). Then check the separate labeling and record-retention rules for written communications.
Failing to report a known violation by another lawyer because the candidate believes reporting is discretionary or fears it breaches confidentiality.
Candidates learn the duty to report as an abstract slogan and do not know the threshold (a violation that raises a substantial question as to honesty, trustworthiness, or fitness) or that the reporting duty is subject to confidentiality limits.
What to do instead
Apply the threshold test explicitly: does the conduct raise a substantial question as to the other lawyer's honesty, trustworthiness, or fitness? If yes, reporting is mandatory unless the information is protected by confidentiality or the lawyer learned it in a confidential setting such as a lawyer assistance program. Distinguish this from the discretionary reporting of lesser misconduct.
Assuming a supervising lawyer escapes liability when a junior lawyer or nonlawyer assistant commits an error, or assuming the subordinate is solely responsible.
Candidates treat supervision as an administrative matter and do not know that a lawyer with direct supervisory authority must make reasonable efforts to ensure the subordinate's conduct conforms to the rules, and that a partner may be responsible for firm-wide systems.
What to do instead
For any fact pattern involving a subordinate's error, ask three questions: did the supervisor know or should the supervisor have known of the conduct, did the supervisor take reasonable remedial action, and was there a firm-wide failure of a system the partner was responsible for maintaining? Assign responsibility at the correct level rather than defaulting to the subordinate.