MPRE area 8 of 12
MPRE Different Roles of the Lawyer
This section covers the special duties that attach when a lawyer's role shifts away from the classic one-on-one advocate-for-a-private-client model: representing an entity rather than a person, giving advice or evaluations that affect non-clients, acting as a neutral rather than a partisan, prosecuting on behalf of the state, appearing before legislative or administrative bodies, and bundling law practice with non-legal services. The MPRE tests whether the examinee can identify which role the lawyer occupies and apply the distinct (and sometimes counter-intuitive) duties that role triggers, especially who the "client" is and what heightened or relaxed obligations follow.
What the MPRE tests
Organization as Client
When a lawyer represents an organization, the client is the entity itself, acting through its duly authorized constituents, not any individual officer, director, or employee. If the lawyer knows that a constituent's conduct violates a legal obligation to the organization, or violates law in a way that might reasonably be imputed to the organization, and the conduct is likely to result in substantial injury to the organization, the lawyer must act as reasonably necessary in the entity's best interest, normally by escalating the matter up the chain of command, including to the highest authority if needed. If, despite the lawyer's efforts, the highest authority insists upon, or fails to address in a timely and appropriate manner, action (or refusal to act) that is clearly a violation of law, and the lawyer reasonably believes the violation is reasonably certain to result in substantial injury to the organization, the lawyer may reveal confidential information outside the entity, but only to the extent reasonably necessary to prevent substantial injury.
Advisor and Evaluator for Third Persons
As advisor, a lawyer must exercise independent professional judgment and give candid advice, which may include moral, economic, social, and political factors relevant to the client's situation, not just narrow legal analysis. As evaluator, a lawyer may provide an evaluation of a matter for use by someone other than the client (e.g., an opinion letter to a lender) if the lawyer reasonably believes making the evaluation is compatible with other client duties; informed consent is required if the evaluation is likely to adversely affect the client's interests materially.
Third-Party Neutral
A lawyer serves as a third-party neutral when assisting two or more persons who are not clients of the lawyer to resolve a dispute, such as acting as a mediator or arbitrator. The lawyer must inform unrepresented parties that the lawyer is not representing them, and when the lawyer knows or reasonably should know a party does not understand the lawyer's differing role, the lawyer must explain the difference between a neutral's role and a lawyer's role as client representative.
Special Duties of a Prosecutor
A prosecutor has heightened duties beyond an ordinary advocate because of the prosecutor's role as a minister of justice, not merely a partisan. This includes only pursuing charges supported by probable cause, ensuring the accused is advised of and given reasonable opportunity to obtain counsel, not seeking waivers of important pretrial rights from unrepresented accused, making timely disclosure of exculpatory and mitigating evidence, and, after conviction, disclosing and investigating new, credible, and material evidence creating a reasonable likelihood that the convicted defendant did not commit the offense, and seeking to remedy the conviction when clear and convincing evidence establishes the defendant's innocence.
Advocate in Nonadjudicative Proceedings
A lawyer representing a client before a legislative or administrative body in a nonadjudicative (rulemaking or policymaking) capacity must disclose that the appearance is in a representative capacity. The lawyer must also conform to several advocacy-related duties that apply in adjudicative proceedings, such as candor toward the tribunal-like body and fairness, even though the body is not acting as a court.
Law-Related Services
When a lawyer provides law-related services (nonlegal services that are related to legal services, such as financial planning, lobbying, or accounting), the full Model Rules apply to those services if they are provided in circumstances not distinct from the lawyer's provision of legal services (regardless of any disclaimer), or if they are provided in distinct circumstances through a separate entity the lawyer controls and the lawyer fails to take reasonable measures to ensure the recipient understands the services are not legal services and the protections of the client-lawyer relationship do not apply.
Try an MPRE-style question
A lawyer represents a closely held corporation. During a meeting, the lawyer learns that the corporation's CFO is siphoning funds into a shell company, causing significant financial injury to the corporation. The lawyer reports this to the CFO's immediate supervisor, the CEO, but the CEO refuses to take any action and tells the lawyer to drop the matter. The lawyer reasonably believes the embezzlement is continuing and will cause substantial injury to the corporation. May the lawyer go over the CEO's head and report the matter to the board of directors?
- (A) No, because the lawyer's duty of confidentiality to the CEO prevents disclosure to the board.
- (B) No, because the lawyer represents the corporation, not the CEO, and has no authority to contact the board.
- (C) Yes, because the lawyer may refer the matter to a higher authority within the organization, including the board, when officers refuse to address conduct that will substantially injure the organization.
- (D) Yes, but only if the lawyer first withdraws from representing the corporation.
Show answer
C. The lawyer's client is the corporation. Under Rule 1.13(b), when an officer's conduct is likely to cause substantial injury to the organization, the lawyer refers the matter up the chain, including to the board, if lower officers fail to act. The confidentiality objection fails because the lawyer owes no personal confidentiality duty to the CEO that would bar reporting to the organization's highest authority. Rule 1.13 also does not require withdrawal before going up the ladder. Model Rule 1.13
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