Multistate Professional Responsibility Examination (MPRE)Client ConfidentialityMedium
An attorney represents a client in a product liability lawsuit against a manufacturer. During discovery, the attorney reviews internal company documents that reveal the manufacturer knew about a design flaw but deliberately concealed it. This information is highly damaging to the manufacturer and clearly shows fraud. The documents are protected by a court-ordered protective order. What is the attorney's ethical duty regarding the fraudulent information?
- AThe attorney must keep the information confidential due to the protective order and the duty to the client.
- BThe attorney may use the information to vigorously cross-examine the manufacturer's witnesses.
- CThe attorney must disclose the fraudulent conduct to the court, despite the protective order.
- DThe attorney must advise the client to report the fraud to the relevant regulatory authorities.
Show answer & explanationAnswer & explanation
Correct answer: B. The attorney may use the information to vigorously cross-examine the manufacturer's witnesses.
The attorney's duty of zealous advocacy requires using all available, ethically obtained information to the client's advantage. While a protective order limits public disclosure, it does not prevent the attorney from using the information within the confines of the litigation (e.g., cross-examination) to benefit their client, particularly if the information is crucial to proving their case.
Why the other options are wrong
- A. The duty to the client and the protective order mean the attorney cannot broadly disclose, but they can still *use* the information in the litigation.
- C. Disclosing information subject to a protective order would violate a court order and potentially the duty of confidentiality.
- D. Advising the client to report is permissible, but it's not the attorney's primary ethical duty regarding how to handle the information *in the litigation*.
Protective Orders & Confidentiality
A court order that limits the use or dissemination of sensitive information obtained during discovery, creating a specific boundary for confidentiality within litigation.
- Information remains confidential under the order.
- Attorney can still use the information within the scope of the litigation.
- Violation of a protective order can lead to sanctions.
Memory trick: Order protects, but you can still use in court.