MPRE common mistakes
MPRE · Understand the traps and how to avoid them.
When a question signals a 'hard' scenario (client threatens violence, client is committing a fraud, client lied on the stand), the candidate reflexively picks the answer where the lawyer discloses confidential information without first checking whether disclosure is permitted at all, and often without checking whether informed consent is a prerequisite.
Candidates learn the Rule 1.6 exceptions as a list of triggers and treat each trigger as a duty to speak, rather than as a narrow permission that must be tied to the exact elements of the exception; the emotional framing of the fact pattern pushes toward 'warn the victim.'
What to do instead
Apply the default first: no disclosure unless it fits a specific exception. Rule 1.6(b)(1) permits disclosure to prevent reasonably certain death or substantial bodily harm. Rule 1.6(b)(2) permits disclosure of the client's crime or fraud, including financial loss, only if the client used the lawyer's services to commit it and only to the extent necessary to prevent, mitigate, or rectify it. Where none of the exceptions fit, the only route is informed consent under 1.6(a) (or a Rule 3.3/1.13/2.3 override).
Picking the 'consent cures conflicts' answer without first asking whether the conflict is consentable, and using the concurrent-conflict test (Rule 1.7: materially limited) for a former client, or the former-client test (Rule 1.9: substantially related and materially adverse) for a current one.
The two tests look similar in the options, and the Model Rules let many concurrent conflicts be cured by informed written consent, so consent feels like a universal solvent; candidates skip the threshold question of which rule governs.
What to do instead
Label the relationship first: current client = 1.7; former client = 1.9; prospective client = 1.18. Then ask whether the representation is prohibited outright even with consent (e.g., asserting a claim against a current client in the same matter, or representing both sides of the same litigation) versus merely consentable with informed written consent. Former-client conflicts usually require no consent if the matters are not substantially related, but the firm-wide imputation under 1.10 still has to be addressed.
Treating an initial consultation as free of consequences, so that the second lawyer in a fact pattern takes the matter even though the first consultation gave the lawyer information that could be significantly harmful to the prospective client.
Candidates equate the existence of duties with the existence of a signed engagement letter or a filed appearance, and assume no fee paid means no client.
What to do instead
Under Rule 1.18, the duty of confidentiality arises from the consultation itself, and a lawyer who received disqualifying information may not represent a client with materially adverse interests in the same or a substantially related matter. Consent from both parties can cure it, and a firm may avoid imputation under Rule 1.18(d) only if the lawyer who received the information is screened and the consulting person received written notice; if the lawyer received no more information than reasonably necessary to decide whether to take the case, no conflict attaches.
Concluding that withdrawal or a quiet 'no questions asked' approach satisfies the duty of candor when the lawyer knows the client or a witness has offered false testimony or false evidence, and choosing the option that keeps the client's secret intact.
Candidates over-weight Rule 1.6 confidentiality and do not recognize that Rule 3.3 overrides it; withdrawal alone also feels like an acceptable remedy because it terminates the lawyer's involvement.
What to do instead
Rule 3.3(a)(3) and (b) require the lawyer to take reasonable remedial measures, including, if necessary, disclosure to the tribunal to the extent reasonably necessary, and this duty continues through the end of the proceeding. Withdrawal alone is never sufficient. The preferred sequence is to remonstrate with the client confidentially, seek to withdraw if the client insists, and disclose only if remonstration and withdrawal fail to correct the falsehood.
Sending a friendly email or placing a call directly to a mid-level manager of an adverse corporate party, or to an employee whose statements might bind the company, after the company has retained counsel, on the theory that only senior officers or the company's registered agent count as 'the party.'
Candidates reduce Rule 4.2 to 'don't call the other side's lawyer's client,' and treat a corporation as a single person rather than a set of employees, so they assume only the CEO or in-house counsel are off-limits.
What to do instead
Rule 4.2 bars communication about the subject of the representation with any person the lawyer knows to be represented, and for an organization that includes employees with managerial responsibility, employees whose acts could be imputed to the organization, and employees whose statements could constitute admissions. Consent must come from the organization's counsel. Rank-and-file employees outside those categories may generally be contacted.
Answering questions about legal malpractice by asking whether the lawyer violated a Model Rule, and concluding that because no ethics rule was broken there is no civil liability, or conversely that a rule violation automatically establishes liability.
The exam is about the Rules, so candidates collapse the ethical standard of care into the tort standard; the two are related but not identical, and expert testimony is the usual proof in malpractice cases.
What to do instead
Keep the two tracks separate. Malpractice is ordinary negligence: the lawyer owes a duty to the client (and to intended beneficiaries in some settings), breaches the standard of care of a reasonably competent lawyer, and that breach actually and proximately causes damages. A rule violation may be evidence of breach but is not dispositive, and there is no malpractice without proven damages. Ethical discipline requires no injury; malpractice requires it.
Depositing a client's advance fee payment directly into the firm's operating account, or depositing firm funds into the client trust account 'to cover bank fees,' and treating a settlement advance for costs as the lawyer's own money on receipt.
Candidates treat all money the lawyer receives as earned revenue, and treat trust account rules as bookkeeping trivia rather than as rules about property ownership; the 'flat fee' label makes the payment feel earned at signing.
What to do instead
Under Rule 1.15, client and third-party funds must be held in a separate trust account, and only funds the lawyer has actually earned may be moved to the operating account. Advance fees and cost advances belong in trust until earned or incurred; a lawyer who wants to treat a flat fee as earned on receipt needs a written agreement and must refund any unearned portion on early termination. No commingling, with the narrow exceptions the rule allows.
Selecting the answer where the lawyer mails a targeted letter to a specific accident victim within 30 days of the injury, or has a paralegal make a live telephone call to a stranger to drum up a personal injury case.
Candidates collapse all advertising into one category and forget that Rule 7.3 turns on whether the lawyer knows the recipient needs legal services in a particular matter arising out of a specific event, and forget that 'live telephone' counts as prohibited personal contact.
What to do instead
In-person, live telephone, and real-time electronic solicitation for pecuniary gain are prohibited unless the person solicited is a lawyer, a close friend or relative, or a former client. Written solicitation is allowed but must be labeled 'Advertising Material' and, for wrongful death or personal injury/accident claims, may not be sent to a person known to need legal services in that matter within 30 days of the event. Pre-recorded calls and general advertising remain permissible with the usual content rules.
Deciding a judge need not step aside because the judge personally believes he or she can be fair, even where the judge's former law partner is appearing, a relative is a party, or the judge has a small financial interest in a party.
Candidates import the subjective standard from the lawyer-conflict rules and forget that judicial disqualification under Rule 2.11 uses an objective appearance test and has bright-line per se rules.
What to do instead
Use the 'reasonable person with knowledge of all the facts would question the judge's impartiality' standard, and apply the bright lines: personal bias concerning a party or knowledge of disputed evidentiary facts, prior involvement as a lawyer in the matter, a spouse or close relative who is a party, lawyer, or material witness, and any financial interest in the subject matter or a party. A judge may continue only after disclosing the ground and obtaining the parties' written consent without the judge's participation, and disqualification may be raised sua sponte.
Reporting every rule violation a lawyer hears about, or conversely concluding that a lawyer may never report because 'confidentiality always wins,' and ignoring who is responsible when a subordinate lawyer or a nonlawyer assistant commits an error.
Candidates miss the narrowness of Rule 8.3 (only violations raising a substantial question as to honesty, trustworthiness, or fitness) and the fact that a supervising lawyer's duty under Rules 5.1 and 5.3 runs independently of any reporting duty.
What to do instead
Report only when the lawyer knows of a violation that raises a substantial question as to the offending lawyer's honesty, trustworthiness, or fitness; a report is discretionary ('may') in most jurisdictions but the information learned in a lawyer's own representation is protected by Rule 1.6, so a report usually requires client consent. Separately, a supervisory lawyer must make reasonable efforts to ensure the firm has measures in place giving reasonable assurance of compliance, and is responsible for a subordinate's violation if the supervisor ordered or knowingly ratified it.