Legal Pro Questions From Book

7-8. What may (must) Martyn & Fox do if at a celebration dinner the night before the initial public offering (IPO), the CEO tells us, "Sure glad we didn't have to disclose that letter threatening a patent infringement suit we got yesterday"? Or the CFO tells us, "I sure am glad the auditors didn't insist we footnote the $65 million in off-balance-sheet financing we arranged. How clever!"? May we withdraw? Will Client have a claim against us if we do? What if we learn these things a week after the IPO?

1) Need to be certain before you withdraw. 2) If wrong about fraud and withdraw then there would be a claim but if there is fraud then must withdraw. 3) Have an obligation to inquire further but do not have to withdraw unless certain, cannot help in future acts, can help correct past ones.

9-10. Martyn & Fox has been retained by Magnum Industries to defend a products liability action. In-house counsel for Magnum tells Fox that the case is "routine," but she is troubled by the fact that plaintiff's counsel works for a law firm that regularly represents Forest Products, Inc., a wholly owned Magnum subsidiary. Does it make any difference if Forest Products is only a partially owned subsidiary?

A lawyer who represents a corporate client is not by that fact alone is not necessarily barred from a representation adverse to a wholly-owned affiliate. Would need informed consent and make sure not to breach confidentiality.

8-5. Judge Smith calls Martyn into chambers. "Tell me your client's bottom line." Client authorized Martyn to offer $50,000. "$25,000," Martyn stammers, proud of her tough negotiating stance. Is Martyn in trouble?

Cannot lie to judge but the amount of 50k is also confidential.

8-7. Martyn & Fox's client dies of natural causes while the client's personal injury action is pending. Now the likely recovery will be less than half. Can we settle the case before the other side finds out? What if our client died as a result of the injury inflicted by the alleged tortfeasor?

Cannot settle before other side finds out. If client died still need to tell the other side but may increase recovery.

8-3. The town is in turmoil. Two children are missing. Client tells Fox he killed the two children and where the bodies are buried. Now what? Does it matter if the parents still hope the children are alive, they've been on television nightly, and the town has been conducting a massive search for two weeks?

Cannot tell the location of bodies if the children are dead. If reasonably believe them to be alive can disclose but do not have to under 1.6(b)(1).

9-4. Two defendants are charged with murder arising from a botched bank robbery that resulted in the killing of a customer. If defendants insist on being represented jointly, can Martyn & Fox represent both defendants? Does it matter if only the "shooter" is eligible for the death penalty? Would it be okay if Martyn represents one defendant and Fox represents the other?

Conflicts like this may be prohibited by jurisdiction, may be possible but need consent from both parties.

6-8. Martyn & Fox advised Widgets, Inc., "If you file that claim with DOD, criminal penalties will follow." Widget's general counsel replied, "That's the board's decision to assess the risk." Two weeks later, Martyn learned that Widgets had hired new counsel, who filed the false statement that Martyn & Fox warned against. What should Martyn do?

If Martyn is no longer counsel to Widgets she should warn company and resent work content. M does not have to disclose under 1.6(b)(2-3) but she can if she so chooses.

3-2. How should Martyn & Fox respond if a housing court appoints us to represent, pro bono, an indigent tenant who says she is being evicted because she tried to force her landlord to repair the building she lives in?

If it is court appointed then you must follow through.

6-10. "Let's get the EPA off our back. Give 'em the damn notes," Clean Energy's general counsel tells Martyn & Fox. Can Martyn & Fox turn over notes of their interviews with Clean Energy employees to the Justice Department as part of a settlement on Clean Energy's behalf?

If person or group with proper authority waives the privilege then you must turn over your notes.

11-2. Martyn was general counsel for Capital Hospital for ten years before joining Martyn & Fox. (a) Can Martyn & Fox represent Small Hospital, a competitor of Capital, in lobbying the state legislature for changes in state Medicaid reimbursement rates?

If they received informed consent and the bill was not averse to their work for Capital Hospital.

8-1. Lawyer Wright, a friend of Fox's from another law firm, consults Fox about her representation of a client who threatens to sue her for malpractice and file a grievance against her for the same conduct. Wright spills all the details to Fox, asking for a reality check. Fox responded instantly with "sage" advice. Okay?

Yes, this is okay but recommend when seeking advice to use a hypothetical.

8-10. Martyn is preparing an appellate brief. She argues that the trial court properly dismissed an indictment against her client because the court correctly construed a criminal statute narrowly so as to exclude her client's conduct. Martyn finds only one reported decision citing the statute, a ten-year-old state supreme court case that upheld the statute's constitutionality. The prosecutor's brief does not mention this case, and Martyn doesn't like the case's dicta, which might suggest a broader statutory meaning. Should Martyn cite the case?

Do not have to tell them since it is just the dicta that is a concern but should distinguish it if you can. Under 3.3(b) usually have to point out case law that is adverse if it is controlling and the other side missed it.

2-1: Martyn & Fox represent Mary Moore, who is about to graduate from law school. d) What if Moore believes in Aryan supremacy and has announced plans to become General Counsel to the KKK White Council?

Yes, this would but they cannot ask them questions about their membership.

1-2: Should Martyn & Fox tell a client the chances of her getting caught doing something illegal, for example, deducting the cost of a child's wedding as a business expense? How about the chances of getting caught withholding a document in response to a legitimate request for production of documents?

No, M & F should not tell them the chances. You need to be very stern with the client and tell them that they must turn over the evidence.

3-1. Should Martyn & Fox take on the representation of a financially strapped couple who have just been served with a notice of foreclosure on their home? An indigent person seeking to expunge a crime that stands in her way of getting a decent job?

Couple: Look at factors such as settlement, are not required to. Indigent Person: if it will be a quick and inexpensive case then you can take it, not required to take it. P. 50 factors.

9-6. Buyer and Seller of real estate come to Martyn & Fox to handle the deal. They have agreed on the price, date of closing, and identity of the property to be conveyed. Can Martyn & Fox undertake the engagement?

Depends on jurisdiction if this is legal, need to get informed consent from both parties.

6-4. At Client's request, Fox returns goods stolen by Client to the police. Now Fox is called to testify about the identity of the person who gave him the goods. What result?

Fox doesn't have to testify. ????

6-9. "Now that I'm selling my business," the 85-year-old patriarch tells Fox, "I want you to make arrangements to give half of the proceeds to dear Margaret. I don't know what I'd do without her." Margaret is patriarch's 30-year-old companion. What may (must) Fox do?

Fox should check for diminished capacity. If no diminished capacity must comply with client's requests. If there is diminished capacity then leeway under 1.14 and guardian can make decisions.

10-10. Fox is an estate lawyer. One day, he receives a visit from an agitated man in his 50s who says, "I need some help for Dad. It is too hard for Dad to travel downtown these days. He needs to change his will to make sure his grandchildren's education is paid for." What should Fox do?

Fox should get informed consent of his client "Dad" most likely by going to visit him to change the paperwork.

9-1. Fox represented Seller in selling a business to Buyer, drafting the required documents, which included Buyer's obligation to make payments over a five-year period to Seller. Buyer hired Martyn a few months later to handle several unrelated business matters. Last week, Buyer asked Martyn about her obligations under the earlier document that Fox prepared. Martyn looked at the document and is inclined to advise Buyer that she has a good reason to stop payments. Does Martyn have a conflict? So what?

Fox should not have represented buyer without the informed consent of seller. Arguably Fox's advice is directly adverse to a former client and Fox should not give it.

4-4. In giving an opinion to Cheltenham Township on the issuance of bonds to finance a shopping center, Martyn & Fox inserted the usual boilerplate: "This issuance complies with all applicable law." But, in fact, Martyn & Fox forgot that there were new Internal Revenue Service (IRS) regulations governing the tax-exempt status of such special-purpose bonds, rendering these bonds taxable. Any problems? What if Fox knew about the new regulations but the Township counsel asked him to ignore them because it would cost the township too much in attorney's fees to comply?

Greycas case, if it was negligent then may be responsible but an easier argument. If ignored intentionally then will be responsible.

3-7. Martyn is detailed by her commanding officer to represent Omar Abdullah before a military commission at Guantanamo. When Martyn meets with Mr. Abdullah, he tells her he wants to represent himself. Martyn explains that the rules of the commission do not permit self-representation. "You'll be better off with me," Martyn explains in some detail. Mr. Abdullah, persists. What is Martyn to do?

If M cannot turn Abdullah from a prospective client to a current client then she should send a non-engagement letter saying there was no relationship. M owns Abdullah competency & confidentiality but the client ultimately decides how they are represented.

10-1. It is crunch time. The initial public offering (IPO) of Giggle is almost ready to proceed, but the client has run out of cash to pay counsel. Martyn suggests a 3 percent allocation of shares in lieu of the outstanding balance. The client gleefully accepts. The IPO is a success. Martyn, as a major shareholder of Giggle, is asked to serve on the board. Should Martyn & Fox celebrate?

In order to take the stock, must comply with 1.8(a) and make sure the fee is reasonable and the client needs to give informed consent.

7-5. May (must) Martyn & Fox disclose that Husband just stomped out of Fox's office, screaming, "I'm going to kill her rather than give her the Cape Cod house"? What if Dad tells Fox that's what Son just told Dad in a phone call not ten minutes ago? What if Fox calls the police, and then is subpoenaed to testify at a grand jury proceeding considering whether to indict Dad? Son?

Q1) You do not have to disclose but you may under 1.6(b)(1). Q2) You do not have to disclose but can under 1.6(b)(1). Q3) Percel

3-6. Should Martyn & Fox represent a defendant on death row who brutally abused and then stabbed two young girls? How should we respond if a court appoints us to represent the defendant?

It is at their own discretion. If the court appoints you, you most likely have to take it.

3-4. Should Martyn & Fox represent Credit Suisse in a case brought by descendants of Holocaust victims who deposited money in the bank before World War II?

It is up to them, there is nothing not allowing them to. Have to make sure there is not any conflicts.

8-13: How does Martyn & Fox deal with our criminal defendant client who insists on testifying and insists, incredibly, that he was in Paris, France, the night of the murder in Paris, Texas? What if we know in advance? What if it happens as a surprise? Does it matter that we are convinced our client is innocent?

MR 1.6(b)(6), 3.3(a)(3) & (b), Comment [13]; RLGL §§ 63, 120 If Martyn & Fox know in advance, they cannot put client on the stand; but if that would violate client's constitutional rights, they should present client's testimony in a narrative format. If Martyn & Fox are surprised, and they know the testimony is false, they must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

10-6. We blew it. Don't know how but we did. Martyn & Fox failed to file a client's case within the appropriate statute of limitations. Must Martyn sit down with the client, confess her error, and offer to pay the entire amount of the underlying claims?

It would be okay to discuss her errors but she shouldn't offer to pay claims unless represented by own counsel. Also should not take on claims of malpractice without malpractice suits actually being filed. 1.8h

9-9. Viacom and Disney are both competing for an open TV channel in New York before the Federal Communications Commission. (a) Can Martyn represent Viacom while Fox represents Disney, if each lawyer seeks his or her client's consent?

No they may not under 1.7 and 1.10 clients would be directly adverse to one another. This is an example of a nonconsentable conflict.

10-3. The client's story is in every newspaper. Front page. But the client is broke. Should Martyn & Fox provide free legal services to this criminal defendant in return for the movie rights to his story?

No this is a violation of 1.8(d).

8-4. Client tells Martyn where he hid the stolen money. Now what? What if Client hands Martyn the key to the safe deposit box where the money is stored? Can Martyn give it back? If she keeps the key, can she be forced to testify that her client gave it to her?

Just telling Martyn it is stolen is confidential. If client hands off the key to Martyn she was a responsibility to tell the prosecutor and deliver the evidence untouched. Restatement 119.

2-1: Martyn & Fox represent Mary Moore, who is about to graduate from law school. a) should Moore be denied admission to the bar because she included as text, and without attribution, seven direct quotations, three from cases and four from law review articles in a seminar paper in law school?

Lack of candor can be grounds for disqualification.

7-1. Martyn, visiting the assembly plant on an employment discrimination matter, has her meeting with the plant superintendent interrupted when p. 164an employee barges in and exclaims, "I just discovered arsenic drums in back of that old warehouse we bought last year." Plant superintendent responds, "Don't bother me. You know we've already exhausted our cleanup funds for the year." He then turns to Martyn, "Now, where were we?" How should Martyn respond?

M should advise them that they would have liability if anything. Comment 6 to Rule 1.6 if the arsenic could cause bodily harm to other people then could disclose if wanted to.

1-5: During negotiations, Buyer's lawyer agrees on behalf of his client to pay an additional 50k because Martyn, representing Seller, has assured him that "land is zoned for ten lots." Martyn has checked the zoning just before the negotiation and in fact knew it was zoned for only one lot. Is Martyn in trouble? What kind?

Martyn gave false assurances which is a violation of 8.4(c).

5-5. Martyn volunteers to represent a child in abuse and neglect proceedings. After a thorough investigation and interview with her client, Martyn determines that (a) her client has capacity to make decisions for herself; (b) it would be in the best interest of the client to go into foster care; and (c) her client wants to be returned to her home, which is surely dysfunctional but where she is not likely to suffer physical harm. What should Martyn do?

Martyn should not impose her own ideas on what her client needs (b) because she is not the guardian. Cannot get a guardian most likely due to capacity being okay (1.14b) Need to respect client's wishes.

7-7. Fox, representing seller, and based on seller's information, told buyer's lawyer that the property is zoned commercial. Just before closing, Fox learns that the property is zoned residential. Client insists no disclosure be made, asserting, "It'll kill the deal." Now what?

Mistake under 4.1(a) not a knowingly false statement so no violation. BUT before closing learns it was a mistake need to disclose under 4.1(b).

10-2. Great business development idea! Martyn & Fox should insert a clause in all of its estate planning documents that appoints a Martyn & Fox lawyer as the fiduciary (executor, administrator, or personal representative) of an estate or trustee of a trust. Then, when Martyn & Fox lawyers act as fiduciary, the fiduciary hires Martyn & Fox as counsel for the trust or estate. Okay?

Need explicit informed consent from the client and most inform the client of all over options for fiduciaries and the pros/ cons to each arrangement. But if client still wants M& F as fiduciaries then they can do it.

4-3. Martyn interviewed a person about a potential personal injury case and agreed to get back to him. Two months later the same person called, leaving a message that he wanted to check on the "status of his case." Before returning the call, Martyn noted that the applicable statute of limitations on the claim had run three days earlier. What should Martyn do? (b)Should Martyn tell the caller that she has researched the case and is not interested in taking on the representation?

Need to tell the client "I messed up" you should retain a new lawyer to look into this.

1-1: Should Martyn & Fox file a claim on behalf of a client after the statute of limitations has expired? What if we are fairly sure the opposing party will not be represented?

No ethical violation to file BUT under 3.1 you should not file a claim without merit, if other side raises SOL affirmative defense then there will be no merit to the claim.

6-7. To make life easier and give lawyers the discretion they deserve, Martyn recommends that Martyn & Fox add the following clause to all personal injury retainer agreements. Should Fox agree?"Client agrees to allow Martyn & Fox to decide whether to disclose any information relating to the representation or to waive the attorney-client privilege or work product immunity whenever Martyn & Fox determines such action will promote the best interests of Client."

No, informed consent needs to be more individualized and the client is the one who can waive confidentiality (exception is 1.6) but this does not fall into those categories.

8-2. Martyn & Fox is dealing with several difficult clients: (c) Martyn was appointed by a court to represent Defendant in a criminal case. Defendant was convicted, and now wants to claim ineffective assistance of counsel on appeal. Outraged, Martyn wants to provide the prosecutor with a sworn affidavit detailing how outstanding she was. Okay?

No, they are not in court yet so should not be disclosing any information.

10-4. The offer is ridiculous. But our client, to survive financially, thinks that she must settle her case now. Should Martyn & Fox pay her living expenses through trial?

No, they should not pay for expenses. It is what the client wants & unethical under 1.8(e)

9-9. Viacom and Disney are both competing for an open TV channel in New York before the Federal Communications Commission. (c) If Martyn & Fox already represents Viacom in another unrelated matter, can we just take on the representation of Disney seeking the channel?

No, this is a nonconsentable issue. You cannot take on "directly adverse" clients. (Maritrans)

2-2: Marty discovers that a valuable and brilliant associate has been charging a client for phantom travel expenses, thereby generating money that he has used to fund a gambling addiction. To make matters worse, the client has filed a bar complaint against Associate. Martyn tells Fox not to worry because Associate has repaid the money and joined Gamblers Anonymous. May Fox accept Martyn's advice?

No, this is an ethical violation.-Rule 8.4 Martyn should not accept his advice, lawyers get in trouble because they did not tell the clients—need to tell all the clients under 1.4 -Rule 5.1 C: failure to make remedial action or do not report the fraudulent action then they would be in trouble - Rule 8.3: "substantial question as to the lawyers honesty, trustworthiness, or fitness as a lawyer" - still need to report him

10-7. Client tells Martyn & Fox that he is strapped for cash and cannot afford our requested retainer in a divorce case. Martyn & Fox, at Fox's suggestion, has Client sign a promissory note secured by a mortgage on the family home in lieu of the retainer. Okay?

No. Fox may get a lawyers lien but cannot use the property in lieu of payment. 1.8(i)

1-4: During negotiations, a lawyer for the buyer agrees on behalf of his client to pay an extra 50k because, the lawyer observes, "the land is zoned for ten lots." Martyn & Fox, representing the seller, knows that the lawyer is mistaken. Should Martyn & Fox close the deal without correcting the mistake?

Not an ethical violation to close the deal (not a good idea for business)

7-2. Client, in the course of estate planning, tells Fox that she is terminally ill. "I've talked to the folks at the Hemlock Society. As soon as I sign these papers, they're going to give me death with dignity." What should Fox do?

Not required to do anything, can disclose under 1.6 with your own discretion. Use your counseling skills to see if they can get help. If there was issues with state of mind (depression-diminished capacity) could move you to 1.14.

7-6. May Martyn tell the other side that our client "won't possibly pay more than $500,000" when she has recommended that our client settle the case quickly for far more than that or face far more extensive liability? How about if Martyn tells the other side that she "isn't authorized to settle for more than $500,000," when she has settlement authority of $5,000,000?

Q1: Puffery or comments made in the course of negotiations would not be a violation of 4.1. Q2: would be a violation of 4.2 because that is a false statement of fact. See Comment 2, Rule 4.1

7-4. May (must) Martyn & Fox disclose or testify that our client has committed a crime for which another person is now serving time? What if the innocent person is on death row? Does it matter if the client has died?

Only a violation if it will lead to serious bodily harm. Does not matter if client has died. Swindler v. Berlin confidentiality requirements. Incarceration in of itself will not lead to serious bodily harm. Death row would be a violation under 1.6(b)(1) to prevent death.

7-10. Client fired Martyn & Fox after Martyn accused Client of fraudulent conduct in connection with certain lease transactions in which Martyn & Fox could not confirm the existence of the underlying equipment. Lawyer A, successor counsel, calls Fox to find out why such a fine firm was terminated. "Were there any disagreements?" Lawyer A asks. What if Martyn is called to testify about the lease transactions in subsequent litigation?

Q1) cannot say anything Q2) does not have to say anything but if there is substantial financial harm under 1.6(b)(2-3) then should warn whoever is relying on the lease transaction but that is optional disclosure.

8-6. If Martyn & Fox's client lies about her name in a criminal case, what should we do?

People vs. Casey. If client will not correct her name then must withdraw from representing her.

12-7: Insurance Company offers to hire Martyn & Fox to represent all of its insured physicians in medical malpractice cases for $200,000 per case. Can Martyn & Fox accept this arrangement? What if the offer is for $20,000 per case?

Perhaps but only if the amount of the flat fee is reasonable. BUT the cases are very different and will have different fees so may not be appropriate.

2-1: Martyn & Fox represent Mary Moore, who is about to graduate from law school. b) What if Moore pleaded guilty to drunk driving five years ago and again last year?

Potentially, they will likely look into if you have a drinking/ drug problem.

7-9. Martyn admonished Client about the importance of fully disclosing all assets on a bankruptcy filing. Client failed to do so and was indicted for bankruptcy fraud. Can Martyn be forced to testify about the original warning?

Probably not. Only if the lawyer and client facilitated the fraud together.

3-8. Fox really likes posting Q & A's on Martyn & Fox's website. Yesterday a website visitor asked: "I really like the idea of being the sole director of a nonprofit because then I can't be fired. Can I do this?" Fox responded: "Our state nonprofit statute permits having one director, but the IRS may raise questions about tax-exempt status if the sole director is also a paid employee of the nonprofit. You might have an advisory board set your salary to minimize questions about your 501(c)(3) status. Call me with any questions." Okay?

Restatement Section 14--this would be giving legal advice, creating a client due to failure to manifest lack of consent.

8-9. Judge: "Since your client has no priors, I will sentence him to probation." Martyn knows that the client has two priors, but neither Client nor Martyn has caused the judge's material error. What should Martyn do?

Should not disclose if it has already been established in the record that that the client has priors, that is the duty of the prosecutor to point out. If it has not been put in the record ask client if you can disclose and play down the previous charges.

7-3. A true nightmare: Our client is being sued by Plaintiff for whiplash from a car accident. Our doctor's exam of the plaintiff indicates Plaintiff has a life-threatening aneurysm. Neither Plaintiff nor his lawyer has any idea of his condition, and the insurance company that hired us instructs that we not disclose any of this to anyone. What should Martyn & Fox do?

Spaulding v. Zimmerman

5-2. Plaintiff retained Fox in a personal injury case. A few weeks later, Fox proudly informed Plaintiff that he had settled the case for a tidy sum higher than the agreed amount. Plaintiff replied that if she knew how much the Defendant offered, she would never have settled for that amount and refused to sign a release. What should Fox do? Does it matter if Fox agreed to the settlement during a mandatory court-annexed mediation?

The client gets to decide if they settle. M & F must convey every settlement offer even if client told them they did not want to settle. M & F should ask for a recession of the settlement if they do not get the rescission could be malpractice and result with a case inside of a case like in Togstadt.

10-11. Martyn & Fox is hired by Insurance Company to represent several of its insureds. (a) Who is our client?

The insurance compan

6-5. Clean Energy, Inc. operates multiple coal-fired power plants. Its CEO is concerned whether the company is meeting air quality standards. He suggests that they do an audit. The general counsel responds, "Let's have the lawyers do it. That way, it will be privileged, just in case the results are not so favorable." Clean Energy's general counsel interviews 25 employees at five different plants and later decides to hire an outside law firm to complete the investigation. "That will help secure the privilege." Is general counsel correct?

The interviews may not be privileged but the outside counsel's investigation will be privileged.

1-3: Should Martyn & Fox advise its client to sign an agreement in a divorce case that settles property division and child support when the opposing lawyer mistakenly believes that alimony can be negotiated later, but we know that the law will bar such a claim? What if the opposing lawyer is a best friend? Has not handled many divorces?

They can sign it if they want to, there is not an ethical violation. (would be best to fix the mistake-- for business reasons)

10-5. A real tragedy. An automobile accident resulted in the death of Wife and serious injuries to Daughter and Grandmother. Martyn & Fox undertook the representation of Daughter and Grandmother, as well as the Estate of Wife. Defendant's insurer offers policy limits of $1,000,000 to settle all claims. Should Martyn & Fox accept the offer?

They may undertake this aggregate settlement only if they have informed consent of all parties. 1.8g

5-4. CEO of Mega Corporation asks Martyn & Fox to draft a deed transferring vacant land owned by Mega to CEO. "It's just a liability for Mega," CEO explains. What should Martyn & Fox do?

They should not transfer the land. M&F are not the CEO's attorney they represent the company and would be a violation of 1.13(a).

8-2. Martyn & Fox is dealing with several difficult clients: (b) Martyn & Fox want to sue to collect a fee. Can they disclose how difficult and irresponsible the client was? How the client repeatedly lied to the other side in negotiations?

Under 1.6 may disclose just enough information to show that the fee is reasonable and get yourself out of trouble under a malpractice suit.

6-3. Martyn & Fox represents Disney as an undisclosed principal for the purpose of purchasing property to develop a new theme park. Fox thinks that this is a great time to purchase stock in Disney. Martyn suggests that the firm should purchase adjacent land, for it will surely rise in value.

This could be insider trading if information is not available to other investors. M & F will need client's informed consent before they will be able to purchase & ensure that Disney does not want to purchase the land. Then M & F should set up a constructive trust.

9-9. Viacom and Disney are both competing for an open TV channel in New York before the Federal Communications Commission. (b) What if Martyn & Fox lawyers feel comfortable taking on the representation of both?

This does not change anything. You couldn't even get informed consent for this.

6-2. Martyn & Fox represent criminal defendants in death penalty cases. Client's relatives brought Client some clothes for trial including some racy underwear. Martyn took a picture of the underwear and posted it on her Facebook account with the caption: "This is what my client thinks is proper attire for court." Any problem?

This is a breach of confidentiality and will result in a mistrial.

9-2. Husband and Wife ask Martyn & Fox to prepare the papers for the dissolution of their marriage. May Martyn & Fox represent both spouses? Does it make any difference if the spouses have already agreed to property division, child custody, and support obligations? What if Husband and Wife, to save money and keep peace in the fractured family, ask Martyn to mediate their disputes regarding these issues? If the mediation results in agreement on these matters, may Martyn draft the legal papers necessary to effectuate the dissolution?

Under 1.7 and 1.8(b) may not be a violation unless they go to court or there is a direct adversity BUT cannot use information against one or the other client.

6-1. What a great idea Martyn has. The firm should include in our website the names of our important clients, our litigation victories, and the big deals we have handled. Most of it is a matter of public record, on file at the courthouse or in filings at the Securities and Exchange Commission (SEC), argues Martyn.

This is a violation without the client's consent. There is no public records exception to the confidentiality rule. Should write out explicitly what you are going to put on the website before getting client consent.

2-3: Fox told Associate, who was counsel of record in a matter, not to appear in court because he wanted to "take care of the matter," even though Fox was not admitted to practice in the state in question. When the judge questioned Associate's absence, Fox replied that Associate had a medical emergency that prevented her appearance. The next day, Fox told Associate: "The judge wants to verify your absence. Just send a letter to the court backing me up — nobody has to know." What should Associate do?

This is an ethical violation. Associate should come clean to the judge. 5.2A: Subordinate lawyer is bound by the rules regardless if a higher lawyer is directing them 5.2B: professional duty requirements 5.1: arguable ethical question under the rules if you are following orders—not an arguable ethical question (if associate followed through with this, he would be in just as much trouble) 8.3a, 8.4—if followed through this could be the outcome.

10-8. Martyn & Fox represents Big Bank in a wide variety of matters. A colleague tells Fox at lunch, "Did you hear the latest? Sarah Snyder [an associate at Martyn & Fox] is dating the General Counsel of Big Bank. How's that for cementing our relationship?"

This is an ethical violation. Comment 19 of Rule 1.8

9-11. Delaware has passed legislation that makes it very difficult to do a hostile takeover of a public company incorporated in Delaware. Martyn & Fox is hired to defend Colossus against a hostile takeover by enforcing this legislation in a case brought in Delaware Chancery Court. At the same time, Martyn & Fox is hired by Amalgamated Industries to seek a hostile takeover of Apex Corporation, a Delaware corporation headquartered in Ohio. May Martyn & Fox support the takeover of Apex by attacking the same Delaware law as unconstitutional in an action pending in the United States District Court for the Northern District of Ohio?

This is not a violation because it is not the same tribunal. 1.7 comment 24.

8-2. Martyn & Fox is dealing with several difficult clients: (a) Client threatens to seek disqualification of Martyn & Fox in a litigated matter. Fox, quite upset about the scurrilous charges, wants to strike back, threatening Client that we will tell his wife about Client's illegitimate child if Client persists. Okay?

This is not okay.

10-9. Martyn & Fox represents Acme Corp. in contested litigation against Zenon Inc. Our senior associate wants to assume a major role in the case, even though he is married to the lead lawyer for Zenon. He says it'll be a great challenge.

This is okay if both clients give informed consent. (1.7, general conflicts)

3-5. Should Martyn & Fox represent a client who wants to disinherit an adult child because he married a person of a different race and religion? Would it make a difference if the prospective client is near death and Martyn & Fox are the only available law firm?

This is up to them, it is not a violation. If they are the only available firm they have a higher obligation.

2-1: Martyn & Fox represent Mary Moore, who is about to graduate from law school. c) What if Moore owes 250k in student loans, has 25k in credit card debt, and has no job?

This may not disqualify her but if she defaults then it would.

12-6: Martyn & Fox take on a breach of contract case for a fixed fee of $50,000. After two years of difficult litigation, Martyn & Fox asks client if the firm can switch to a contingent fee of 40 percent of any recovery. "It's taken us a lot more time than we expected," Fox intones. Any problem?

This would be an ethical violation under 1.5(A) because it would be an unreasonable fee due to undue influence.

9-8. A corporate client's CEO asks Martyn & Fox to represent his wife and himself in drawing up new wills. Can we do so? What if the wife takes Martyn aside and tells her to draft a codicil that diverts a substantial part of her assets to a "friend"? What if later, during divorce proceedings, the wife calls Martyn & Fox to be refreshed as to husband's assets; may (must) Martyn & Fox share that information?

This would be okay may need informed consent of any conflict, tell them there cannot be confidentiality between the two clients, if they become adverse you cannot represent either of them and they will each need to go get their own lawyer. Codicil drafting: 1.4/ 1.6 conflict, hopefully, they have signed waivers and we can tell the husband about this "friend". A v. B Divorce proceedings: this is not protected under attorney-client privilege, she has a right to see the information she gave you during estate planning.

6-12. Martyn & Fox are ready to try the High Energy case against Arthur Touche and five former High Energy directors. Fox's secretary hands him a thick fax with a cover page that says: "To all Defense Counsel. Privileged and Confidential. Summary of Decision Quest's Jury Profile." What should Fox do? What if the fax reveals misconduct by the other side? What if the same document is sent in a plain brown envelope with a note saying, "Knew you'd find this interesting"?

Under 4.4(b) Fox should inform opposing counsel of what he received. It is a violation to use this information without letting the other side know as it is a violation to justice.

11-1. Three years ago, Martyn & Fox prepared tax returns for Wife's business. Husband now wants Martyn & Fox to represent him in a divorce. Can we? What if we handled an employment discrimination claim for Wife's business?

Under the tax returns that would be considered materially adverse to a former client and they could not take the case unless there was informed consent. Later should work but still may need informed consent. Employment discrimination, maybe look at 1.9(a) substantial relationship test.

4-2. Client received a settlement of $1 million in a Ford Explorer rollover case. Martyn & Fox provided the client with tax advice regarding the receipt of such a large sum. Later, client learned about a similar case that ended in a jury verdict of $3 million. Client sues Martyn & Fox for the difference. What if Martyn & Fox had been retained to advise Client about the advisability of the settlement?

Would need to see the engagement letter. This is a question of the scope of representation, 4.2 and 1.2(c). M & F most likely will be off the hook for this.

8-8. May (must) Martyn & Fox disclose the presence just outside the courtroom of a witness that we know the other side has been trying to subpoena for weeks?

Would not have to disclose.

6-11. "We're cleaning things up around here," the new CEO declaimed. "You can testify to all conversations with that pathetic old management. The SEC should know how inept my predecessor was." Can Fox testify to privileged communications with the old CEO of the client?

Yes but need to be careful, if old CEO thought there was joint representation then cannot testify to those things.

6-6. In a privileged conversation, Client tells Martyn where he was on the night in question. Can Client now be compelled to testify as to his whereabouts? What if Client has died?

Yes can be compelled to testify in a civil case. In a criminal case yes also but will be subject to 5th amendment. Yes if client dies.

5-1. Martyn and Fox represent Client, who was convicted of capital murder. Client's direct appeals were unsuccessful, after which Client received a court-appointed Lawyer to represent him in his state and federal post-conviction proceedings. Lawyer filed and argued a state habeas petition, but failed to file the federal claim within the required statute of limitations when the state claim was denied. Client tells Martyn & Fox that he repeatedly wrote Lawyer letters requesting information and directing Lawyer to file a timely federal petition. What next?

Yes they should take it. Holland v. Florida. May petition due to gross misconduct by legal representation.

9-7. A longtime client of Martyn & Fox asks us to represent three partners in forming a new business: our longtime client, who is the money guy; the new venture's CEO; and the woman who owns the patent that is key to the business plan. May we?

Yes, but need informed consent from each individual after you tell them the conflicts of interest that will arise. Need to get different lawyers if they become adverse to one another.

4-3. Martyn interviewed a person about a potential personal injury case and agreed to get back to him. Two months later the same person called, leaving a message that he wanted to check on the "status of his case." Before returning the call, Martyn noted that the applicable statute of limitations on the claim had run three days earlier. What should Martyn do? (c) Must Martyn tell the caller that the statute has run and it's her fault?

Yes, if Martyn fails to disclose the SOL has expired that is a breach of fiduciary duty to communicate under 1.4.

3-3. Should Martyn & Fox ghostwrite a brief for a pro se litigant?

Yes, if they want to, this is okay under 1.2(c). But should not enter their appearance in court if they do not want to represent the client.

9-5. Our longtime corporate brokerage client and two of its stockbrokers have been sued for violating know-your-customer regulations. Can Martyn & Fox represent the corporation and both stockbrokers?

Yes, they can represent them both but need appropriate informed consent. Inform them that if interests diverge that the stockbrokers may need their own lawyer.

4-3. Martyn interviewed a person about a potential personal injury case and agreed to get back to him. Two months later the same person called, leaving a message that he wanted to check on the "status of his case." Before returning the call, Martyn noted that the applicable statute of limitations on the claim had run three days earlier. What should Martyn do? (a) Will Martyn & Fox be liable for malpractice?

Yes, they will be liable for malpractice under Togstadt standard.

4-1. Fox, a renowned divorce lawyer, has 40 years of litigation experience. His last client lost child custody when the opposing spouse presented several of Client's public Facebook postings at trial, including a photo of their child holding a beer captioned "Following in mama's footsteps" and two others in which the client posted "Life without kids is great" and "Stay single and childless." Fox told Client he had never used Facebook and "what you put on the internet isn't my problem." Is Fox in trouble?

Yes, under 1.1(a) Fox owes a duty of competence to his clients.

5-7. Is Fox in trouble because he failed to inform a criminal defendant about a plea bargain offered by the prosecutor? What if Client told Fox, "I'll never cop a plea"? What if the defendant was eventually convicted and sentenced to five years, and the plea bargain would have resulted in a two-year sentence? What if Fox erroneously advised the client not to worry about pleading guilty because he would never be deported after living in the country so long?

Yes, you must bring every offer to your client. Still must bring every deal to your client. Last Q???

5-3. Martyn & Fox is handling a state habeas petition for a death row inmate. Martyn thinks the trial counsel provided ineffective assistance of counsel. Martyn discusses this with her client. She explains the investigation she needs to undertake. The client listens intently but warns Martyn that the one thing she may not do is talk to her client's mother. "She's suffered enough already. I direct you not to talk to her." What should Martyn do?

You cannot disclose because client is giving you explicit directions.

11-6. Martyn & Fox agrees to staff a hotline for the local legal services project every Tuesday. One Tuesday, a Martyn & Fox associate received a phone call from an individual who has been the victim of predatory lending by The Dollar Store. Without seeing any documents, the associate gave the woman advice about possible remedies, only to learn upon returning to the firm that Big Bank, Martyn & Fox's largest client, owns The Dollar Store. Is Martyn & Fox in trouble?

no not in trouble

11-7. Martyn & Fox recently hired Julia Davis, a lawyer who worked for the state attorney general's office for the past six years. Ms. Davis's first case in the AG's office was the successful defense of a race discrimination class action against the State Department of Taxation. In her last case, she served as lead counsel in negotiating a settlement in an antitrust suit on behalf of the State Department of Transportation against General Motors. (a) Can Martyn & Fox take on the representation of Paula Pearson, who wishes to bring a race discrimination complaint against the State Department of Taxation based on events that occurred four years after Ms. Davis's defense of the department?

yes-? just need screen?