Multistate Professional Responsibility Exam Practice Question
Attorney J represents a patient-plaintiff in a negligence action against a hospital. The hospital's counsel has confirmed that the hospital is represented in the matter. A staff nurse employed by the hospital witnessed-but did not participate in-the surgical procedure at issue; no claim is made that the nurse's own acts or omissions are a basis for the hospital's liability. The nurse has no supervisory duties and no authority to bind or speak for the hospital. The nurse is not personally represented by counsel. May Attorney J, without the hospital counsel's consent, contact the nurse about what she observed?
Yes. Because the nurse is not a decision-maker, cannot bind the hospital, and her own conduct is not at issue, Attorney J may interview her unless she is personally represented.
No. The no-contact rule bars talking with any hospital staff member who has firsthand knowledge of the incident.
No. Any employee of a represented organization is off-limits once the organization's counsel appears.
Yes, but only if the nurse confirms in writing that she is willing to speak.
Under Model Rule 4.2 and comment 7, a lawyer may not speak ex parte with an organizational constituent who (1) supervises, directs, or regularly consults with the organization's lawyer about the matter, (2) has authority to obligate the organization with respect to the matter, or (3) whose acts or omissions in connection with the matter may be imputed to the organization. Because the nurse is non-managerial, lacks any authority to bind the hospital, and her conduct is not alleged to give rise to the hospital's liability, she falls outside those protected classes. Therefore, Attorney J may interview the nurse unless she is personally represented or another law forbids the contact. The incorrect options each rely on factors-the hospital's representation status, the nurse's willingness, or her mere possession of information-that do not independently trigger the no-contact rule.
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Multistate Professional Responsibility Exam
Transactions and communications with persons other than clients