Pro Res Midterm Glannon Guide Questions Ch 1-5

Attorney Albert worked at Ricks, Sawyer & Thompson for five years and specialized in real estate. During the last three years, Albert has worked intensively on Client Callahan's properties and disputes that arose. Before leaving Ricks, Sawyer & Thompson, Albert handled a new real estate deal for Callahan that resulted in the erection of a new apartment complex. Albert now works at Friedman & Grisley and receives a new case assignment. Albert discovers that the new client, Raymond Bradley, is a small business owner located next to Callahan's apartment complex and is suing Callahan for a disputed right of way.

Albert may represent Bradley if Callahan consents in writing to him doing so.

Lawyer Laura worked at the Abel & Bentley firm for five years, and she specialized in real estate. During the last three years, Lawyer Laura has worked extensively on Client Cain's properties and disputes that arose related to them. Before leaving the Abel & Bentley firm, Lawyer Laura handled a new real estate deal for Client Cain that facilitated the erection of a new apartment complex. Lawyer Laura now works at the Davis & Eldridge firm. One of her first assignments is a case in which a Client Seth, a new client of the first, is suing Cain over a disputed right of way through the very property that now holds the new apartment complex - Seth and Cain are neighbors. Can Laura represent Client Seth against her former client, Cain?

Lawyer Laura may represent Client Seth if Client Cain consents in writing to her doing so.

Attorney began her career as a prosecutor at the District Attorney's Office. During her tenure as a prosecutor, she brought charges against an individual suspected of sending ricin, a deadly toxin, in an envelope to a prominent politician, apparently in an unsuccessful attempt to assassinate the public official. The jury found the evidence too attenuated, and it acquitted the defendant. Shortly thereafter, another person, who was a member of a terrorist organization, confessed to sending the ricin and provided extensive evidence of his plot to kill the politician to make a political Statement. Attorney resigned from the District Attorney's Office, partly out of humiliation over this case, and-went into private practice. Eighteen months later, the accused individual decides to sue the government over wrongful arrest, slander, libel, and wrongful prosecution over the case in which he obtained an acquittal, Attorney feels that her superiors at the D.A.'s Office had pressured her to press charges in order to satisfy the public uproar over the ricin letters, despite having scanty evidence that the accused individual was actually guilty. Attorney offers to represent the accused individual in his lawsuit against the government, partly to make amends or atone for her role in what she now views as an abuse of government power and a great injustice. Would it be proper for Attorney to handle this case, given her good Intentions?

No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.

An attorney spent several years working for the state Office of the Attorney General in its environmental litigation division. While there, the attorney began a case against a scrap metal facility for burying toxic materials on its grounds. The attorney then left government service and went to work for Big Firm. There, the attorney began representing a group of neighboring landowners in a lawsuit against the same scrap metal facility over the same burying of toxic material, as it had polluted the groundwater and had migrated to adjacent properties underground. Is it proper for the attorney to represent these plaintiffs?

No, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency.

An attorney, who often serves as a court-appointed mediator, was appointed to mediate the divorce case between a husband and wife. The case settled in mediation and the divorce was finalized soon after. A year later, the husband sought to retain the attorney to represent him in a modification suit against his wife. The attorney accepted the case and sent a letter to the wife advising her that the attorney had been retained by the former husband to represent him in a modification suit. Are the attorney's actions proper?

No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter.

A client retained an attorney to represent him in two cases: a criminal case and a divorce case. The attorney required that the client pay a retainer fee for the family law case, which billed at the attorney's hourly rate. The attorney then arranged for the client to pay him based on a contingency fee for the criminal case. The attorney and the client both signed the combined contract, which detailed each fee arrangement for each case, and the attorney's representation began. Are the attorney's actions proper?

No, as attorneys cannot charge a contingent fee for representing a defendant in a criminal case.

An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left his government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, defending against an enforcement action that the attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client's challenge, but instead worked exclusively on enforcement litigation matters. The government agency refuses to consent to the attorney representing the client, who is the adverse party to the agency, in this matter, and seeks to disqualify Big Firm from representing the client. Is Big Firm subject to disqualification in the client's matter against the attorney's former employer?

No, as long as Big Firm screens the attorney in time from any participation in the matter and provides the agency with prompt written notice about the screening measures in effect.

Years ago, as a law student, the attorney worked on a case for the client during a law firm internship. Now, the attorney's firm is representing a defendant in a lawsuit in which the client is the plaintiff. The client's new lawyer moves to disqualify the attorney's firm from the representation when it learns that the attorney worked for another firm on behalf of the client when the attorney was still a law student. Is the attorney's firm subject to disqualification in this case?

No, as long as the firm screens the attorney from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the non-lawyers and the firm have a legal duty to protect.

A legal secretary in a law firm is married to the owner of an independent retail-clothing store. The firm undertakes representation of a clothing wholesaler, who is suing the same independent clothing store over nonpayment for shipments of merchandise. The legal secretary's husband hires another firm to represent his store in the lawsuit, and his lawyer asks the court to disqualify the legal secretary's firm because of her position there. Should the firm be subject to disqualification?

No, as long as the firm screens the legal secretary from any involvement in the case or from access to any confidential information about the case.

The Supreme Court in a state adopted a new rule that doubled the number of continuing legal education hours each lawyer must complete every year in order to maintain a license to practice law in the state. The fifty-hour annual CLE requirement was the highest of any state in the nation. A legal aid lawyer challenged the new rule on constitutional grounds, claiming that it was unduly burdensome to poverty lawyers, given the high cost of the CLE courses, and therefore could leave more poor citizens without representation. Is the legal aid lawyer likely to prevail in this challenge?

No, as state courts have inherent authority to impose reasonable regulations on the lawyers practicing in their jurisdiction.

An attorney is a criminal defense lawyer. The court has appointed him to represent a defendant who has already given a full confession of the burglary to the police, after receiving proper Miranda warnings, and the prosecution has several witnesses who either saw the crime or heard the defendant discussing his plans to commit the crime beforehand. The police properly obtained all necessary warrants during their investigation and arrest, and the defendant's actions clearly meet the elements in the statute. The lawyer explains to the defendant that he has almost zero chance of an acquittal, given the evidence against him and the fact that the Supreme Court has repeatedly upheld the penal code provision that furnished the basis of the charges in the case. In fact, the attorney cannot imagine any viable defense to raise at trial, Does the attorney have an obligation to ask the court for permission to withdraw from the representation?

No, because a lawyer for the defendant in a criminal proceeding may nevertheless so defend the proceeding as to require that every element of the case be established.

An associate attorney works at a law firm. The supervising lawyer, who is a partner at the law firm, directs the associate attorney to prepare a petition for a civil case. The associate attorney contacts the client and discusses the facts of the case. During the conversation, the associate attorney realizes that the suit he was directed to file is frivolous and there are no facts to support the claim. The associate attorney discusses his concerns with his supervisor, and the supervising lawyer directs the associate attorney to file the suit, explaining that it will probably settle prior to trial, Following the supervisor's direction, the associate attorney files the suit. Are the associate attorney's actions proper, given that he was merely following orders?

No, because a lawyer is responsible for any violations, including the filing of frivolous suits, even if directed to file such suit by a partner of the firm at which the lawyer works.

An attorney, an associate at Big Firm, applied for a patent for a client and successfully obtained the patent. Three years later, another party sued the client for allegedly infringing on one of their patents. The attorney was a necessary witness in the patent infringement matter, and planned to testify on behalf of the client that the client had successfully obtained a patent to the invention in dispute. Two partners at Big Firm, where the attorney worked, handled the representation of the client in the infringement case, pursuant to the client's written consent. Will the two partners at Big Firm be subject to disqualification from representing the client in the patent infringement case, if the attorney will be a witness about the original patent application?

No, because a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness.

A client fired an attorney after the attorney had completed 80 percent of the work involved in the representation. The client refuses to pay any of the fees that were in the original agreement at the beginning of representation. The client also demands that the attorney turn over all papers and documents relating to the representation. Must the attorney immediately return the client's documents regardless of the fees owed?

No, because a lawyer may retain papers relating to the client to the extent permitted by law.

An attorney represented a newspaper publisher in a defamation case brought by a popular actor. A radio talk show invited the attorney to participate in their afternoon program and respond to calls from the radio listeners. The first caller asked the attorney to explain the case involving the superhero that the popular actor had played in a recent film. The attorney explained that the actor (using the actor's legal name as it appeared in the pleadings, rather than his stage name or the character for which the actor was most famous), and the legal name of the publisher the attorney represented. He also explained that the lawsuit was over alleged defamation by the newspaper, and that the newspaper planned to raise an affirmative defense of truth, that is, it would attempt to show that the stories it printed about the actor were factually accurate, even if they were unflattering. The attorney also mentioned that the actor owns a home and a business in the state, which iS a matter of public record, and this is why the case is in the courts in that state. Did the attorney violate the Rules of Professional conduct by making these statements on a radio talk show program?

No, because a lawyer may state the claim, the defense involved, the identity of the persons involved, and matters in the public record.

As he left work one evening, an attorney was approaching his car in the parking garage when he noticed two men arguing near a car at the far end of that floor of the garage. He could not hear what they were arguing about, but could hear occasional profanities and insults, and one of them shouting, "I warned you!" Then he saw that the men began to fistfight. A few other people by this point had stopped to watch in the parking garage and someone called the police, who arrived within five minutes. By that point, one of the men who had been fighting was bloody and could not walk away from the fight on his own. The police took the men into custody and the other witnesses quickly dispersed, so the police took a statement from the attorney, the only witness who remained. The officer turned to his partner, who was standing near the squad car with its driver door open, and shouted that one of the witnesses was actually a lawyer, which prompted a snide remark from the other officer. One of the arrestees in the car overheard this exchange and asked the officer to get the attorney's business card so that he could hire him. May the attorney represent the arrestee in the criminal or civil proceedings that follow?

No, because a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.

An attorney was a state hearing officer for the Workers Compensation Board. The attorney left that position and opened his own law firm, primarily representing parties before the state Workers Compensation Board, One of the cases is the final rehearing of a case in which the attorney had presided as hearing officer at an initial preliminary hearing and ruled on preliminary matters, but the attorney left the Board without issuing any final decision in the case and the Board transferred the matter to another hearing officer. The attorney represents the injured worker, the client, and the employer is Manufacturer. All the parties involved give informed consent, confirmed in writing, for the attorney to represent the client. Is the attorney subject to discipline for representing the client in this matter?

No, because all the parties involved provided informed written consent to the representation, despite the obvious conflicts of interest at stake.

A client asked an attorney to represent him in a lawsuit. The attorney conducts some preliminary research and quickly discovers that the lawsuit IS a very long shot. In fact, based on the attorney's survey of the existing judicial decisions in very similar cases, the attorney estimates that they have only a 15 percent chance of winning, and it will depend on an extraordinarily lopsided jury, a strongly partisan judge whose political leanings go in their favor, as well as a mediocre lawyer representing the other side. Otherwise, all things being equal, the attorney advises the client that he is about 85 percent certain that they will not prevail. The client is willing to take risks, however, and urges the attorney to take the matter. The attorney reluctantly agrees, on the condition that he can charge a somewhat higher fee than usual, and files the lawsuit. Could the attorney be subject to discipline for bringing a frivolous claim?

No, because an action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail.

A client met with an attorney to discuss certain financial decisions that the client was considering making in the future. The attorney discussed the pros and cons of making the decisions, but did not give a recommendation to the client. The client went on to make the financial decisions and ultimately came under investigation by the IRS for tax fraud. Is the attorney subject to discipline?

No, because an attorney may analyze and give an opinion about the likely consequences of a client's conduct.

During his closing argument at a bench trial, an attorney makes the following statement to the judge: "Your Honor, I know this client, because we grew up together and have represented him in various legal matters for years. I know that he is an honest person who would never lie or try to take advantage of another person unfairly. In fact, I am doing this case on a pro bono basis because I feel so strongly about the justness of his cause." All of these statements were truthful - the attorney had known the client since childhood and had represented him many times, the attorney admired the client's integrity, and the attorney had offered to handle this case without charging any fee because he believed so strongly that the client was on the right side. Was it proper for the attorney to make these comments during closing arguments?

No, because at trial, a lawyer shall not assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, or the credibility of a witness.

During opening arguments in a criminal trial before a jury, an attorney, who was representing the defendant, closed his statements by declaring, "My client is innocent; I know it in my heart. By the end of the trial, am confident that you will agree with me that this iS an innocent man." Are such comments proper For a defense lawyer to make during trial?

No, because at trial, a lawyer shall not state a personal opinion as to the guilt or innocence of an accused.

Three years into the litigation in a complex antitrust lawsuit, it became necessary to have the attorney, who alone represented the defendant corporation, testify as a witness at the trial. The attorney had been present at a private meeting between his client and an industry rival, at which they allegedly discussed a price fixing scheme, and the testimony of the two rivals (the only ones besides the attorney at the meeting) contradicted each other. The question of what occurred at the meeting was a hotly contested issue in the case, but was only one of many issues in the protracted, extremely complex litigation. The opposing party moved to disqualify the attorney from representing his client after the attorney took the stand to testify. Should the court disqualify the attorney from representation, or from testifying as a witness?

No, because disqualification of the lawyer would work substantial hardship on the client.

An attorney represents a defendant in a prosecution for rape. The client turned down several other experienced criminal defense lawyers who offered to take the case and hired the attorney to represent him. The client saw the victim early in the evening on the date when the rape occurred, but he has a solid alibi, supported by multiple credible witnesses, that he was nowhere near the scene where the rape occurred at the time that it happened, and no DNA tests link the client to the rape. The only evidence against the client, in fact, is the victim's memory of seeing him early that evening and feeling uncomfortable around him, as if she could sense that he was a sexual predator. Her rapist wore a mask, so she could not identify his face, but he was the same height and build as the client, so she is convinced he is the perpetrator. Despite the weakness of the evidence against him and his airtight alibi, the client is furious about the false accusation and wants to teach the victim a lesson. He informs the attorney that he plans to take the stand and testify that the victim has a reputation among his friends for being promiscuous, that when he saw her that evening she was wearing provocative clothing, and that he believes she was "asking to be raped.' The attorney finds this repugnant, but he believes the client is truly innocent of the rape in this case, and the client will probably receive an acquittal with or without this testimony attacking the victim's character and reputation. The attorney believes the court will allow him to withdraw from the case and that the client could easily hire one of the other lawyers to take over the representation. Is it improper for the attorney to withdraw from the representation, if he agrees with the objectives the client is pursuing (acquittal) but disagrees with the actions the client plans to take?

No, because even where the lawyer agrees with the overall objectives of the client, a lawyer may withdraw from a case if the client insists upon taking action that the lawyer considers repugnant.

An attorney receives a report from a psychologist that provides the psychologist's professional opinion that the client is unstable. The psychologist's report indicates that the client believes himself to be perfectly sane, and that the client has indicated he will cause harm if the psychologist submits a report stating the client is not stable and sane. The attorney chooses not to provide the report to his client when he receives it. Is the attorney subject to discipline?

No, because immediately providing the report to the client may cause harm to the client.

An attorney interviewed an expert witness whom he thought he might hire to testify at a client's trial. The attorney explained he was meeting with several expert witnesses and would hire the one who he thought would seem most persuasive to the jury. The expert witness offered to work on a contingent fee basis; if the attorney did not win the case at which the expert testified, no fee would be due. The attorney would have to pay the expert witness only if his testimony was compelling enough to produce a favorable outcome in the case. The attorney thought that this would give the expert an incentive to prepare more thoroughly for trial, and that it would be fairer to the client, who would be left bankrupt if they lost at trial and would have trouble paying the expert's fee anyway. Would it be proper for the attorney to hire the expert witness under such terms?

No, because it is improper to pay the expert witness a contingent fee.

An attorney used to work at Big Firm, and three years ago moved laterally to Medium Firm. One of the attorney's former colleagues at Big Firm also left and started a solo practice. While working at Big Firm, the solo received an assignment of literary rights from one of his clients about the client's high- profile case, immediately after the end of the case and the conclusion of the representation. That client also assigned any remaining literary rights to Kingpin Publishers in exchange for a hefty payment. The solo is now suing Kingpin Publishers to establish exclusive literary rights in the story. The first attorney's current firm, Medium Firm, represents Kingpin Publishers, and the solo represents himself. Another publisher is interested in acquiring the solo's book or movie script, and is funding the litigation expenses for the solo, even though it is not a client and does not yet have any ownership rights over the story. The case that gave rise to the literary rights occurred while both the solo and the first attorney were working together at Big Firm. The attorney performed some preliminary work on the case-reviewing and indexing a single deposition transcript before the client's trial -but the lawyer who is now the solo actually represented the client at trial. A paralegal at Big Firm is currently engaged to an editor at Kingpin Publishers, and the two are already living together. The attorney at Medium Firm, who is representing Kingpin Publishers, is in a sexual relationship with another lawyer at his own firm, and both are working in some capacity on the case. Executives at Kingpin Publishers have informed the first attorney that if his firm wins this case, they will hire Medium Firm for all their future legal work, which could be very lucrative in the long term. The solo has just filed a motion to disqualify the first attorney and the rest of Medium Firm from representing Kingpin Publishers in the case, alleging simply that there is conflict of interest. Does Medium Firm have a disqualifying conflict of interest in representing Kingpin Publishers in this particular litigation?

No, because neither the attorney nor Medium Firm have any disqualifying conflict of interest in this case.

An attorney represents a client in a commercial litigation matter against a small independent bookstore. It is known in the local business community that the opposing party (the bookstore) has been on the verge of bankruptcy for the last two or three years. The facts and law of the present litigation, however, make it a close case - the attorney believes, accurately, that his client has at best a 50 percent chance of winning at trial. At the client's urging, the attorney files frequent motions asking for more time in discovery, more time to respond to the opposing party's motions, and a postponement of the trial date to allow more time to prepare and locate the necessary expert witnesses. The attorney thinks that the opposing party may have to close down and file for bankruptcy soon, which would make the opposing party's claims moot. The judge has an overcrowded docket, and is always glad to grant postponements or more time on various responses. Is it proper for the attorney to take this "time is on our side" approach to litigation?

No, because realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

An attorney works for a firm where another lawyer is representing the defendant in a personal injury lawsuit. The other lawyer has represented the defendant for a long time on unrelated, non-litigation matters, but the personal injury lawsuit is a new case. The victim, the plaintiff in the same personal injury lawsuit, was a college classmate of the attorney and he asks the attorney to represent him in the litigation. The attorney has not learned any confidential information yet about the defendant from his fellow associate at the firm, nor has the attorney learned any from the victim during their preliminary consultation. The firm. decides to undertake the representation of the victim as well. The firm will carefully screen the attorney and lawyer from: one another, forbidding them to discuss tne case with each other or anyone else in the office; and ensuring that they do not have access to each other's files for the case. In addition, neither lawyer will receive a bonus from the fees received for this litigation. Under the Rules of Professional Conduct, is it proper for the attorney to represent the victim, given these circumstances?

No, because the Rules of Professional Conduct impute the conflict of the other lawyer to the attorney, and screening procedures do not apply to conflicts between current clients.

An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, defending against an enforcement action that the attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client's challenge, but instead worked exclusively on enforcement litigation matters. The government agency gives informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client's matter against the attorney's former employer?

No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client's challenge, but instead worked exclusively on enforcement litigation matters. Is the attorney subject to disqualification in the client's matter against the attorney's former employer?

No, because the attorney did not participate personally and substantially in the matter as a public officer or employee.

An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against Conglomerate Corporation. The attorney had worked on an enforcement against Conglomerate Corporation and learned confidential government information about the entity during the litigation, but the attorney does not know, and has no reason to know, that the information is confidential government information. The attorney is under the reasonable impression that all the information she learned about Conglomerate Corporation is now public information. The government agency gave its informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client's matter against the attorney's former employer?

No, because the attorney does not have confidential government information about Conglomerate that she knows is confidential government information.

After much effort, an attorney located a witness who could fully corroborate his client's story and could impeach the testimony of the opposing party's star witness. The witness, however, was afraid of retaliation from others if she testified, and did not want to be involved. The attorney offered the witness $10,000 to appear at the trial for one afternoon and testify for an hour or two. The witness reluctantly agreed. Was it proper for the attorney to offer to pay a favorable witness to undergo the trouble of testifying at the trial?

No, because the common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying apart from expenses.

After obtaining a favorable verdict at trial, a client asked the court to award attorneys' fees, which was permissible under relevant law. An attorney had represented the client throughout the litigation and now had to testify as a witness about the fees he had charged during the representing, authenticating, explaining, and justifying both the billable hours recorded on the timesheets and the lodestar rate for his legal services. Was it improper for the attorney to testify as a witness in the same proceeding in which he had represented a party as trial counsel?

No, because the testimony relates to the nature and value of legal services rendered in the case.

Attorney is a busy litigator. During one scheduling conference with the judge and opposing counsel, Attorney asked for a continuance (postponement) of a particular hearing until a later date because she planned to be on vacation in Europe during that time. The judge and the opposing counsel agreed. On another occasion, three months later, Attorney asks another judge to reschedule a hearing so that it will not fall on her anniversary, when she has dinner plans in the early evening. In that instance, which was not the same matter or client as the first instance, the lawyer for the other party complained about rescheduling for such a trivial reason, but the judge agreed to reschedule the hearing for a month later. Was it improper for Attorney to seek these postponements?

No, because there are occasions when a lawyer may properly seek a postponement for personal reasons.

A client consults with an attorney, a solo practitioner, about a family law issue. The attorney has never practiced family law, but has spent his years as an attorney practicing strictly construction litigation issues. The attorney accepts the case, as he is only handling a few construction litigation cases at this time and could use the money this case will bring to his practice. The attorney believes he can get advice on how to handle the case from attorneys in the area who practice family law, and with whom he has good relationships. Is the attorney subject to discipline?

No, even when a lawyer does not have to have prior experience to practice in a specific area of law, a lawyer can represent clients as long as they are able to provide competent representation.

Attorney worked for Big Firm in their intellectual property department, specializing in patent applications and patent enforcement, as well as some trademark disputes for clients. Unbeknownst to Attorney, the regular litigation department at Big Firm undertook representation of a Trucking company in defending against a personal injury lawsuit over a roadway accident involving one of the trucks. Attorney worked in the Washington, D.C. office of Big Firm, near the United States Patent and Trademark Office, and the litigators handling the truck accident are in the firm's Dallas office. Each office of Big Firm has its own local computer network for sharing documents and files between lawyers there. It is possible for lawyers at Big Firm to access the networks of other satellite offices, however, with a special login that most lawyers never use. Attorney has never accessed the files of the Dallas office except for one trademark case four years ago. Attorney did not make partner at Big Firm, so he left and went to work for a small plaintiff's firm in Kansas. One of Attorney's first Case assignments was the same truck accident case in which Big Firm was defending Trucking Company; Attorney's new firm represents Plaintiff in the case. Attorney was not aware of the case or that Big Firm represented Trucking Company until the new firm assigned him to the case as second chair on the litigation. Is Attorney subject to disqualification in this matter?

No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer Individually nor the second firm are disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.

A client fired an attorney after two weeks of representation, long before the matter was complete. Client had prepaid a large refundable retainer, against which the attorney was to draw his fees as the representation went on. The client therefore has fully paid her fees up to that point to the attorney. The attorney is very upset about the client discharging him without cause and believes it is unfair and wrongful. The attorney refuses to return the remainder of the fees, and refuses to turn over any documents from the representation to the client. Is it proper for the attorney to take this course of action, if indeed the client had no good reason to discharge him?

No, it is improper for an attorney to retain either the unused funds or the documents.

A lawyer is representing the defendant in a personal injury trial between a celebrity plaintiff and a famous hotel, where the plaintiff claims to have suffered injuries due to unsafe conditions. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that his client has already made renovations to the hotel to ensure that no accidents happen in the future, even though they do not admit liability in the present case. He also explains that if his client loses, his insurance company will simply pay the damages, and lawsuits like this make everyone's insurance premiums go up. The lawyer has his client's permission to talk to the media. Opposing counsel is standing nearby waiting for his turn to talk, and he expresses no objection to the first lawyer giving interviews like this, or to the lawyer's comments. Were the lawyer's statements proper?

No, it violates the Model Rules for a lawyer to make public statements about information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial.

A lawyer worked for Big Law Firm and represented a certain client. Sometime after the conclusion of the case, the lawyer left Big Law-Firm. Another potential client consulted with Big Law Firm after the lawyer left, and this new prospective client discussed a potential case with Attorney Andrews, another lawyer at Big Law Firm. The potential client's interests would be materially adverse to those of the first client, of the lawyer who left the firm. Attorney Andrews at Big Law Firm accepts the new client's case. Can Attorney Andrews or other lawyers still working for Big Law Firm provide representation to the new client, according to the Model Rules?

No, prior attorneys' knowledge is not imputed unless the matter is the same or substantially related and another lawyer in the firm has information that is material to the matter.

A lawyer is representing the defendant in a highly publicized trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that the prosecutor already held a press conference in which she shared that the defendant had refused to take a polygraph test, and that DNA tests had confirmed the defendant's guilt. The lawyer explains that polygraph tests are inadmissible due to their unreliability, and that the DNA results are in dispute and will be the subject of expert testimony at trial. He adds that the sleazy prosecutor has a habit of holding such press conferences to prejudice the proceedings before every criminal trial, and that it merely reveals that the prosecutor's cases are too weak to win on the merits without such stunts. His client, he says, is now guilty until proven innocent, which is a shame considering the serious criminal charges in the case. He also mentions that the state's star witness is a dangerous convicted felon who is testifying in exchange for early release from prison. Were the defense lawyer's statements proper?

No, such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.

Attorney works fora firm, She also describes herself as an outspoken advocate for the rights of unborn children, that is, she passionately favors legal restrictions on abortion. A local abortion clinic asks the firm to represent it in litigation over recent zoning measures that would significantly limit its hours of operation and therefore the number of clients the clinic could accept. The firm agrees to the representation. Attorney firmly refuses to have any part in the representation, and though no formal screening measures are in place, everyone else in the firm avoids discussing the case with her or around her because they are afraid of receiving another lecture about the wrongfulness of abortion. Early in the litigation, the judge considers disqualifying the firm because it employs Attorney, who has a reputation in the community for her advocacy against legalized abortion. Neither the clinic nor the opposing party (the municipal zoning authority) provided written consent to a conflict of interest. Should the firm be subject to disqualification in this case?

No, the firm should not be disqualified where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm.

On the same day, an attorney agrees to represent an undocumented immigrant in a visa-revocation matter, as well the victim in a tort action (product defect) against an automobile manufacturer. The two matters are unrelated. In the second case, the attorney anticipates that the defendant automobile manufacturer will argue that extensive federal safety regulations of automobiles, which require certain safety features and specifications, should preempt state tort law and therefore prevent a state court from adjudicating the case. On the other hand, many undocumented immigrants have relied upon federal preemption of state law in challenging onerous state penal statutes targeted at illegal immigrants. If the attorney prevails in his preemption argument in the vehicle manufacturing defect case, and on appeal creates precedent against federal preemption of state law, the precedent would probably be unfavorable to the attorney's other client, the undocumented immigrant. The state legislature has several bills pending that would impose criminal sanctions on landlords who lease apartments to undocumented aliens, drivers who transport undocumented aliens to work sites, and contractors who hire subcontractors who employ undocumented aliens. Does the fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of the other client create a conflict of interest, for which the lawyer must obtain consent from each client?

No, the mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.

A state legislature enacted a statute that doubled the number of continuing legal education hours each lawyer must complete every year in order to maintain a license to practice law in the state. The fifty-hour annual CLE requirement was the highest of any state in the nation. A legal aid lawyer challenged the new rule on constitutional grounds, claiming that it was unduly burdensome to poverty lawyers, given the high cost of the CLE courses, and therefore could leave more poor citizens without representation. In the alternative, the lawyer claimed that it violated the separation of powers. Is the legal aid lawyer likely to fail in this challenge?

No, the state courts have exclusive inherent authority to regulate the lawyers practicing in their jurisdiction.

Attorney Adams is in-house counsel for a large international corporation and has daily contact with higher-level executives and managers. One day, a senior executive mentions casually to Attorney Adams that he has offered lucrative stock options, worth millions of dollars, to a foreign government official who has agreed to give the firm an exclusive contract to provide certain goods and services to the foreign state. The executive seems to think this is normal and good for the company, but Adams believes it constitutes bribery of foreign officials, which would violate the Foreign Corrupt Practices Act, and could subject the company to enormous fines and penalties. Attorney Adams explains her concerns to the executive, including her concern that he could face personal criminal charges in addition to bringing liability on the corporation, and she reminds him that she represents the corporation, not him personally. The executive is dismissive of her concerns, even though she approaches him several times about the matter. How must Attorney Adams proceed?

She should approach the executive's immediate corporate superior, advising those next up the chain of authority to stop the transaction and take appropriate actions against the executive involved.

Lindsey is a single mother working as a cashier in a liquor store. She is behind on her rent, and her landlord has provided written notice of his intent to evict her from her apartment; a complicating factor in the eviction is that the landlord did not fully honor the terms of the lease regarding conditions in the apartment parking lot. She meets with a lawyer for a free initial consultation, but realizes she cannot possibly afford the lawyer's fees, so she leaves and starts planning to move home with her parents. Lindsey also discusses her problems with one or two of her friendly customers. To her surprise, the lawyer calls her the next day and offers to represent her free of charge, and she returns to the office and signs a retainer to this effect. Unbeknownst to Lindsey, a regular customer at the liquor store, Richard, is infatuated with her, and having learned of her plight, Richard contacted the lawyer and offered to pay all the fees for the lawyer's representation of Lindsey, on the condition that Lindsey never know about it. Richard wants to keep Lindsey in the neighborhood so that he might someday win her affections. Under the Model Rules, how should the lawyer handle this situation?

The lawyer absolutely cannot represent Lindsey without obtaining her written consent, even though she would receive free legal help and the lawyer would represent her diligently.

Unable to find a convincing defense for his criminal client, the defense lawyer began to think about desperate measures. He felt an overwhelming duty to rescue his client from a long prison sentence, no matter what. Just before the close of evidence, the lawyer raised a defense of entrapment. The defendant had not been the target of a sting operation, and there was no evidence that the police had offered any inducement to commit the crime, which was an aggravated assault on a family member. The prosecutors immediately objected that the defense counsel should have raised this earlier, and the judge quickly dismissed the claim as unfounded and told the lawyer to move on, He next tried stalling, and he told the judge he could prove someone else committed the crime if there could be more time. This was a complete fabrication, and the judge asked several searching questions, but the lawyer was insistent. The judge denied the request for more time. Then the lawyer claimed that he also wanted to challenge the constitutionality of the assault statute itself, claiming the Second Amendment's right to bear arms implied a right to assault people with a weapon under a wide range of circumstances. The judge laughed and agreed to give him two weeks to brief the issue in order to preserve it for appeal. The next day, the lawyer held a press conference, in which he claimed the judge was biased and that it was clear that someone else had committed the crime and had framed his client.

The lawyer could face discipline for the press conference, for raising the entrapment defense, for the request to have additional time, and for raising the constitutional claim.

Mrs. Kramer met with a lawyer to discuss a physical assault by her estranged husband, who had broken into the house of Mrs. Kramer's, friend, where Mrs. Kramer was now living to avoid contact with her husband, and had assaulted her, leaving minor injuries and damaging some of her personal property. The lawyer agreed to represent her in seeking a restraining order against her estranged husband. The next day, upon hearing about this meeting, the estranged husband appeared in the lawyer's office, also seeking representation in the same matter. Mr. Kramer expressed his desire for reconciliation and asked the lawyer to represent him in mediation with his estranged wife, and to defend him at the restraining order hearing. The lawyer accepted a retainer fee from Mr. Kramer and agreed to represent him, just as he had done with Mrs. Kramer. Both the husband and wife were aware that the same lawyer represented them and proceeded with scheduling a hearing and mediation meetings, but neither signed paperwork actually consenting to the joint representation. Mrs. Kramer is unhappy that the husband hired her lawyer, but she feels she cannot do anything about it. What sanction could the lawyer face because of this dual representation?

The lawyer is subject both to discipline and to disqualification for violating the Model Rules, as the parties are directly adverse in the same proceeding.

Aaron, a college sophomore, is facing criminal charges related to a drunk driving accident the previous night. To his great relief, Aaron's parents visit the firm of Lawyer Lucas, and retain him as defense counsel for their son, agreeing to cover all fees and expenses. The criminal charges in this case allow for jail time or hefty fines as potential punishments. The prosecution offers a plea bargain - a $2,000 fine, a few hours of community service, and six months' probation, but no jail time. Aaron, the defendant, is thrilled, but his parents insist that Lawyer Lucas decline the plea bargain and go to trial, which Lucas is certain will result in a conviction and a short jail sentence. The parents believe a short jail term will be good for their son and teach him a lesson, and paying the $2,000 fine on top of the lawyer's fees will force them to forego their vacation plans that year. A loud argument ensues in the conference room between the parents and Aaron over the best course of action. How should Lawyer Lucas proceed?

The lawyer must follow the decision of Aaron, who is his real client, and accept the plea; he should have explained to the parents in advance that they could not control the case even if they paid his fees.

A client hired an attorney to represent her in a litigation matter. At the end of the first day of trial, the client is unhappy with her lawyer's performance in the courtroom and informs the attorney that she is firing him and will find another lawyer. The attorney wants to continue representing this client until the end of the trial. May the client discharge the attorney after a trial has begun?

Yes, a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services.

An attorney agreed to represent a plaintiff in a personal injury lawsuit, and the next day agreed to represent a defendant in litigation where the defendant faces vicarious liability. Only after the attorney has conducted some investigation of the case, and has obtained confidential information from each client, does the attorney discover that the plaintiff client is actually suing another of the attorney's clients, under a theory of vicarious liability. The two clients are actually adverse parties in the same litigation, Must the attorney withdraw from representing both clients?

Yes, a lawyer shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct.

An attorney was a judge but has left that job and joined Big Firm. Another lawyer at Big Firm represents the client in a case on the docket at the same court where the attorney worked as a judge. In fact, as a judge, the attorney ruled on some of the pretrial motions in the case, mostly evidentiary motions. The firm has screening measures in place to screen the attorney from any participation in the matter. The attorney will receive no part of the fee from the matter, and timely notice went to the parties about the screening measures in place. The other parties, however, did not provide informed written consent to Big Firm's representation of the client. Is it proper for the other lawyer at Big Firm to continue representing the client in this matter?

Yes, as long as Big Firm also provides timely notice to the appropriate tribunal as well, so that the tribunal may ascertain compliance with screening measures.

An attorney is a partner in a law firm and owns $100,000 worth of stock in Conglomerate Corporation the named defendant in a new antitrust suit. The attorney's total compensation from the firm is around $15 million per year, including bonuses, and his net worth is around $500 million. His home is worth about $7 million and the attorney inherited it, so the property is unencumbered by any mortgage or liens. The attorney works in a specialized area of law at the firm and does not have much interaction with the other lawyers, except at parties and occasional partners' meetings. Another lawyer in the firm seeks to represent the plaintiffs in the antitrust action against Conglomerate Corporation, which is not a client of the firm. Would it be proper for the firm to represent the plaintiffs in litigation against Conglomerate Corporation?

Yes, as long as the attorney is not involved in the representation, there will be no imputation of the attorney's conflict of interest to the other lawyers in the firm, because it is the attorney's personal interest and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

An attorney represented Small Business Associates while working at Big Firm, her first law firm after law school. When the attorney did not make partner at the firm, she ended her employment there and started her own new firm. The attorney took some of her clients with her, including Small Business Associates, whom she continues to represent. Big. Firm-no longer has Small Business Associates as a client. Big Firm then agrees to represent Conglomerate Corporation in a trademark infringement case against Small Business Associates, the first such case. that the latter has ever faced. Can Big Firm represent Conglomerate in a case against its former client, Small Business Associates?

Yes, as long as the matter is not the same or substantially related to that in which the attorney formerly represented the client; and no lawyer remaining in the firm has confidential information about Small Business Associates from when the attorney represented them at that firm.

Client consults with Attorney regarding a criminal case in which Attorney previously represented Client's friend, who is a co-defendant in the current case, in another matter. Attorney. does not believe that the previous representation of Client's friend: will:-disable him from providing competent and diligent services to Client, and the parties are not making any claims against each other. May Attorney represent Client in this case?

Yes, attorneys may represent. conflicting parties as long as both clients give informed consent and both parties confirm their consent in writing.

A client, age eighteen, is facing criminal charges of sex with a minor, based on his sexual relationship with his thirteen-year-old girlfriend, who lives in the same tenement building. The relevant statute has strict liability for perpetrators - that is, no mens rea or scienter element - and places the victim's age cutoff for the most serious grade of felony at age fourteen. It is indisputable in the case that the defendant had a sexual relationship with the victim when she was thirteen, but the victim claims she wanted the relationship and willingly consented to the sexual contact with her boyfriend. A state psychologist examined the victim and included in his report that she was emotionally mature for her age and was making relationship decisions in the same way as an adult. Even though the attorney is certain that the trial court will convict the client, he believes there is a slight chance that he could convince an appellate court to take a loose view of the age-of-consent provision in the statute, either on substantive due process grounds or simply as a matter of progressive statutory construction. Attorney believes that many thirteen-year-olds, and even younger, are sexually active nowadays and that the criminal laws should reflect the changing values of society. The attorney agrees, therefore, to take the client's case and to use it as a test case to try to change the law of sexual consent in the appellate courts. Is it proper for the attorney to make a defense in criminal case that goes against the clear statutory verbiage and established case precedent?

Yes, because a claim or argument is not frivolous if the lawyer is making a good-faith argument for modification or reversal of existing law.

An attorney spent several years working on the state intermediate appellate court as one of its nine justices in a state in which such judges run for election in the general elections every four years. When the attorney ran for re-election, she lost, and needed to return to private practice. The client wants the attorney to represent her in her appeal of a state trial verdict. The case previously came up on appeal before the state intermediate appellate court, but the attorney was not on the panel that decided the case. The state Supreme Court subsequently reversed the decisions of both the appellate court and the trial court, and remanded the case for a new trial. The new trial resulted in an unfavorable verdict for the client, so she wants to appeal the case again. Would it be proper for the attorney to represent her in this matter?

Yes, because a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate.

An attorney worked for several years for a federal government agency in regulatory enforcement. The attorney was involved in several enforcement matters against Conglomerate Corporation. Big Firm has always represented Conglomerate Corporation in all its litigation and regulatory compliance matters. The attorney made a good impression on the Big Firm partners when serving as opposing counsel in the same litigation. At the end of a deposition of Conglomerate Corporation's executives during the discovery phase of an enforcement proceeding, Big Firm partners approached the attorney privately and asked if the attorney would be interested in leaving the agency for a position at Big Firm. The attorney explained that they would have to match his current salary at the government agency in order for him to consider the proposal. Big Firm then scheduled an employment interview with the attorney, at the end of which they offered to double his salary if he left the agency and accepted a position at Big Firm. The attorney decided to postpone making a decision until the pending agency enforcement matters against Big Firm's client were complete, in order to avoid the appearance of a conflict of interest. The matters dragged on for another year, however, and Big Firm eventually withdrew its offer. Is the attorney subject to discipline?

Yes, because a lawyer currently serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially.

After an attorney has been representing a client in a transactional matter for six months, the client asks the attorney to draft and deliver some documents that the attorney knows are fraudulent. The attorney tries to dissuade the client, but the client insists. The attorney believes the recipient of the documents will probably realize they are fraudulent before irreparable harm happens to the recipient. The client is willing to sign a private document for the attorney in which the client takes full responsibility for the fraud and states that the attorney was merely following orders and is not blameworthy in the matter. Would it be improper for the attorney to acquiesce, and draft and deliver the documents according to the client's instructions?

Yes, because a lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent.

Attorney is a litigator and finds it helpful to talk to jurors after a trial concludes to see what they thought about the performance of the lawyers in the case. Assuming the judge has not forbidden talking to jurors and the jurors are willing to talk to him, is it proper for Attorney to have conversations with jurors in their homes, a week after the trial?

Yes, because a lawyer may communicate with a juror after the discharge of the jury, but must respect the desire of the juror not to talk with the lawyer,

An attorney was representing a client in a criminal matter. At the bail hearing, the prosecutor told the court that the defendant was a flight risk, and asked the court either to confine the defendant until trial or to set bail at $15,000. When it was the attorney's turn to speak, he assured the judge that the client had a medical condition that would prevent him from leaving the area, and that the client did not intend to flee the jurisdiction, but was confident that he could stand trial and clear his name of all charges. The attorney knew, however, that the client already had plane tickets to Venezuela, a non-extradition country, and that the client had already fully recovered from his serious medical condition. Is the attorney subject to discipline for making these statements to the court?

Yes, because a lawyer may not knowingly make a false statement of fact or law to a tribunal.

A prosecutor in a felony drug case addressed a group of reporters outside the District Attorney's office. In response to questions about the specific case underway, the prosecutor explained that the judge had consolidated the trials of three co-defendants into single proceeding and had postponed the proceeding until the next summer, four months away. Was it proper for the prosecutor to disclose such details about the case to reporters?

Yes, because a lawyer may tell reporters the scheduling or result of any step in litigation.

A client, who happened to be a judge, hired an attorney to represent her in her divorce proceeding against her husband, who is guilty of marital infidelity. Their fee agreement stipulates that the attorney would bill the client every month for the work performed in the previous thirty days. After two months of representation, the attorney has sent the client two bills, and has received no payments, Is it proper for the attorney to seek to withdraw from the case on the basis of unpaid fees?

Yes, because a lawyer may withdraw if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.

While conducting research on a litigation matter, an attorney finds a very new case from the highest court in his jurisdiction that is directly adverse to his client's legal position in the case. The opposing party did not mention the case in its briefs, and the attorney realizes that the opposing party's lawyer has been recycling his firm's briefs for this type of case for several years without updating his research. Does the attorney have an ethical duty to disclose the unfavorable binding precedent to the court?

Yes, because a lawyer must disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

In preparation for trial, an attorney and the client sat down together to go over the client's upcoming testimony. The client mentioned, as he recounted his version of the facts, something that the attorney knew would constitute an admission of fault on a critical point in the case. The attorney interrupted the client and said, "If you admit that, you will have forfeited your entire case. The client nodded to show his comprehension of what the attorney said. The client testified at trial and changed his story significantly, carefully omitting the statement that the attorney had identified as a legal admission of guilt. Did the attorney violate the Rules of Professional Conduct in preparing the client for his testimony in this way?

Yes, because a lawyer must not counsel another person to conceal a matter with evidentiary value.

An attorney is a litigator and represents a client in a civil lawsuit in which the client is the defendant. The attorney explains the general strategy and prospects of success, and consults the client on tactics that are likely to result in significant expense, such as the hiring of experts or jury consultants. At the same time, the attorney believes their best shot at winning the case will be to elicit an admission from the plaintiff during cross-examination when the plaintiff testifies at trial. More specifically, the attorney plans to elicit a mild, relatively innocuous admission during the first round of cross-examination, expecting opposing counsel to rehabilitate the witness on re-direct examination. The attorney then plans a short, direct, re-cross consisting of three yes- or-no questions that should elicit a devastating admission from the plaintiff, which opposing counsel is probably not anticipating. Attorney has not discussed this plan for cross and re-cross with Client. Even if the re-cross does not go as well as the attorney hopes, they might prevail in the case by several other ways. Is it proper for the attorney to leave the client out of the planning for the cross-examination and re-cross of the plaintiff?

Yes, because a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail.

A client is aware that he is under investigation for student loan fraud. A friend who works at the courthouse tips off the client that a magistrate issued a warrant to search the client's home for evidence the next day in the early morning. In a panic, the client calls his attorney, whom he has retained to represent him during the investigation and any prosecution that follows, and asks what he should do. The attorney informs him that the agents executing the warrant will surely seize any computers and hard drives that they find, and that the client should probably wipe and reformat all his drives or dispose of his computers, that he should probably smash his cell phone, and that he might want to go on a long vacation immediately. Is the attorney subject to discipline for this advice?

Yes, because a lawyer shall not counsel or assist another person to destroy or conceal a document or other material having potential evidentiary value.

During a personal injury trial, the court took a lunchtime recess for an hour. The plaintiff's lawyer from the case walked across the street from the courthouse to a familiar diner to buy lunch. The diner was very crowded, so it was difficult for patrons to find a table to sit and eat. After ordering his sandwich at the counter, the attorney noticed two jurors from his own trial standing with their food, waiting for a free table. One of the jurors asked the attorney if they could share a table with him when one became available. The attorney agreed, but reminded them that they could not talk about the case. The three sat together and ate their sandwiches. The two jurors talked most of the time, getting to know each other - discussing their children, their jobs, and their pets. The attorney did not participate in the conversation except to answer their questions about how many children he had, and whether he owned any pets. Another juror from the trial was at the diner, and noticed the attorney sitting with the other two jurors, which he reported to the judge when court reconvened. Could the attorney be subject to discipline for sharing a table with the jurors during a lunch break?

Yes, because a lawyer should not have any ex parte social contact with jurors during a proceeding, even if they do not discuss the case.

An attorney represented a client in litigation over a breach of contract. After jury selection but before the opening arguments of trial the following Wednesday the opposing party contacted the attorney with a settlement offer. The attorney, an experienced litigator, was familiar with opposing counsel from previous cases, and knew that opposing counsel always follows up an initial settlement offer with a better offer a day or two later. Therefore, the attorney declined the offer immediately, knowing from experience that a better offer was forthcoming. When the attorney met his client at the courthouse the following Monday for the first day of trial, he mentioned that he was encouraged by the opposing party's initial offer the previous week, which he had declined, because it meant that a more generous offer was on the way any time. The client was surprised that his attorney had not consulted with him about the offer, but he accepted the attorney's explanation for declining it and agreed they would wait for the next offer. As both parties and their lawyers took their places in the courtroom, the opposing counsel passed a note to the attorney with a new settlement offer, and just as the attorney expected, it was much more generous. The attorney and his client agreed to settle the case right then, and avoided the inconvenience of going through the whole trial. Is the attorney subject to discipline?

Yes, because a lawyer who receives from opposing counsel an offer of settlement in a civil controversy must promptly inform the client of its substance prior to taking any action.

An attorney agreed over the phone to represent client, and began working on the case immediately. The client came into the office two weeks later to sign the representation agreement. At the same time, the attorney gave the client a written statement of the hours worked so far and requested immediate payment for that portion of the fee, plus a $10,000 retainer up front against which the lawyer would draw fees as the representation proceeded. The fee arrangement was complicated. In addition to the hourly fee for the time he had already worked, the agreement called for an hourly rate of $150 per hour for any work done before trial. If the case were to go to trial, the hourly fee would be $250 per hour for the entire trial phase and any appeals. The agreement also stipulated that it incorporated by reference any oral agreements regarding additional fees and expenses. The client signed the agreement. Then the lawyer explained orally that in addition to the hourly fees and the non-refundable retainer, he would take a 25 percent contingent fee of any money that the other side had to pay the client as a result of the representation, whether in damages, as there were claims and cross-claims in the case, or in court-ordered attorneys' fees. The client agreed, and they shook hands to confirm their oral agreement. Finally, the agreement authorized the lawyer to have full discretion to accept or reject any settlement offers without prior approval from the client, although no such offers occurred. The case proceeded through the discovery phase and went to trial. On the last day of the trial, before closing arguments, it appeared that the client might win a large verdict. The client became resentful about the prospect of sharing this with the lawyer, and fired the lawyer during a recess before closing arguments. The client returned to the courtroom alone, waived his right to closing argument, and still won a significant verdict. The client now refuses to pay the lawyer the contingent fee or even the hourly fees for the last day of trial, because the client claims the attorney performed incompetently that day. The attorney has threatened to sue the client to obtain the fees. Could the attorney be subject to discipline?

Yes, because all contingent fee agreements must be in writing, not merely oral agreements incorporated by reference.

Miranda and her two sisters, Lisa and Nancy, all sustained injuries in a car accident last year. Because they did not have enough money to get separate attorneys, they decided to consent to using the same lawyer, Joseph. After months of trial preparation, the defense counsel approached Joseph with a settlement offer. Miranda sustained severe injuries, but fortunately Lisa and Nancy only received a few bumps and bruises. Joseph believed that the settlement offer was a reasonable offer and that it would be in the clients' best interest to accept it because of how all-consuming and costly trial can be. Even so, Joseph also knew that Miranda would be a hard sell on accepting a settlement offer because she believed she could get a larger judgment if she presented her case in front of a jury. If Joseph obtains consent from both Nancy and Lisa to accept the defendant's settlement offer, will he be subject to discipline for accepting the offer without first discussing it with Miranda?

Yes, because an attorney must inform and obtain written consent from each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients.

A court orders that a particular client should receive child support from her ex-husband. The client's ex-husband stopped making child support payments twelve months ago. The client hires an attorney to handle the enforcement of child support against the client's ex-husband. The attorney agrees to take the case on a contingency basis because the client cannot afford to hire an attorney since she has not been receiving child support from her ex-husband. The client also asks the attorney to pay her court costs, as she cannot afford those either. The attorney prepares a contract that states the attorney will only be paid for his representation if the client prevails on the enforcement motion, but that court costs will be reimbursed by the client within thirty days of the finalization of the case regardless of whether the client prevails. Is the attorney's conduct proper?

Yes, because attorneys may accept cases on a contingency basis in domestic relations issues if the case is merely to enforce a prior order, and attorneys may pay for court costs for clients.

An attorney has represented his client in the past on various transactional matters. They have always operated under an oral agreement about the fees, and they have never had a dispute over fees in the past - the attorney would send the client a bill, and the client would pay it. Recently, the client contacted the attorney by phone about representing him as a plaintiff in a personal injury lawsuit. The attorney agreed, and then explained that he would charge a contingent fee in the case, so that the client did not have to worry about how much time his attorney had to put into the case, as the client would still receive the same share of whatever amount they won. Given their long history of working together, the attorney offers to set the contingent fee below the rate charged by other attorneys in the area, and they agree over the phone on a 25 percent contingent fee for the attorney, after costs and expenses. They never formalize this agreement in writing, though at the end of the case, after they prevail and win a large verdict, the attorney sends the client a written statement about keeping 25 percent of the award for his fee. The client is very happy with the outcome of the case and they have no dispute over this fee. Would the attorney be subject to discipline in a situation like this?

Yes, because contingent fees must always be formalized in writing at the beginning of representation.

An attorney represented a client in an action for replevin. After the filing of the case, but before the court had sent any notices about the docket number, the attorney spoke to a clerk at the courthouse, and inquired whether the case had received an assignment yet to a judge. The clerk said it was still unassigned. The attorney then asked the clerk to mention to the Director of Judicial Administration, who was also the Chief Presiding Judge, that they should not assign the case to a particular judge, who was notorious for having a bias against parties like the attorney's client, and who had an extraordinarily high reversal rate from the appellate courts in replevin cases, The clerk said he would mention the conversation to the Director, which he did. The Director said she could not accommodate special requests from lawyers regarding case assignments, but when it came time to assign the case, she assigned the case to another judge merely to avoid another embarrassing reversal from the appellate courts. Was it improper for the attorney to ask the clerk to pass his concerns along to the Director?

Yes, because during a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters, or jurors, unless authorized to do so by law or court order.

An attorney has represented a client on various small matters in the past. The client now needs representation for a more substantial matter involving a business transaction. During a phone call, the attorney agrees to represent the client at a slightly higher hourly rate, given the complexity of the matter, and when they meet to discuss the transaction in more detail, the attorney double-checks with the client about the fee arrangement verbally, explaining it carefully and answering any questions the client may have. The attorney and the client never formalize the fee arrangement in writing, but the attorney does send printed bills to the client periodically. Eventually, the client starts to feel that the representation is costing too much, and objects to one of the bills. Was it permissible for the attorney to have an oral agreement over hourly fees, without putting the fee agreement into writing?

Yes, because even though it is always preferable to have fee agreements in writing, it is not required in this type of case.

An attorney represented a client in a prosecution for murder, and the prosecutor was seeking the death penalty. The trial was not going well, and the judge had not sequestered the jury, SO the attorney sent his secretary to visit some of the jurors in their homes one evening, bringing them cookies and talking to them about the seriousness of sentencing a fellow human being to death. The secretary did not say she worked for the attorney, but instead introduced herself as a member of an advocacy group that seeks to abolish the death penalty, and she left pamphlets about abolishing the death penalty in each juror's home. Could the attorney be subject to discipline for this activity?

Yes, because he was communicating ex parte with the jurors through the secretary during the proceeding.

A witness testified on a client's behalf at trial. That evening, when the attorney was reviewing exhibits and documents to prepare for the next day of trial, he noticed a document that completely negated the witness' testimony from earlier that day. The testimony was material evidence in the case. The witnesses left the jurisdiction after his testimony concluded, and he IS no longer available to correct the false statements. The opposing party's lawyer waived his opportunity to cross-examine the witness, because the testimony was unfavorable to his side and he was eager to move on to a more favorable witness. Does the attorney have a duty to take remedial measures to correct the false testimony, such as disclosing the falsehood to the court?

Yes, because if a witness called by the lawyer has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

An attorney represents a client who is defendant in a criminal matter. The defendant faces felony charges. The attorney is very experienced in handling this type of case, and knows from experience that defendants receive acquittals far more often in jury trials than in bench trials, at least with this type of case. The client, however, does not want to incur the legal fees involved in jury selection (voir dire, etc.), and cannot really afford it, so the client tells his attorney that he does not want a jury trial, but rather a bench trial. The attorney is convinced that his client is innocent of the crimes charged, and that bench trial is likely to result in a wrongful conviction in this particular case, given some of the evidentiary issues. The attorney postpones notifying the court that the defendant will waive his right to a jury trial, in hopes of changing the client's mind. The court schedules jury selection, and the attorney appears and participates in the voir dire without telling his client, because he still hopes and believes that he will change his client's mind about the issue. On the first day of trial, the client arrives in court and is shocked to see a jury seated. The defendant stands and objects loudly to the jury and explains that he wants to waive his right to a jury trial and have a bench trial instead. The judge refuses to dismiss the jury at this point, informing the defendant that his opportunity to request a bench trial has passed. The trial proceeds and the jury acquitted the client of all charges, as the attorney had expected, and to the apparent dismay of the judge, who would have ruled to convict if it were up to him. Is the attorney subject to discipline in this situation?

Yes, because in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to whether to waive the right to a jury trial.

Attorney Adams is a busy litigator, but she is also a single mother of two young children. She has to pick her children up from daycare every weekday by 4 P.M. As a result, whenever she is scheduling hearings, conferences, settlement negotiations, or trial dates, she simply refuses to schedule anything in the late afternoon, as that could easily run into the time when she must pick up her children. The result is that her cases tend to stretch out over a long period, as she is available for hearings, trials, and other litigation-related meetings only in the mornings and early afternoons, and otherwise must seek postponements. Could Attorney Adams be subject to sanctions for managing her schedule in this way?

Yes, because it is not proper for a lawyer to fail routinely to expedite litigation solely for the convenience of the advocates.

An attorney located a witness who could corroborate his client's story. The witness, however, was afraid of retaliation from others if she testified, and did not want to be involved. The witness also lives 1,000 miles away and works as a waitress, so she cannot afford the travel expenses and lodging, and cannot afford to miss work, because she receives no wages if she does not work. The attorney offers to pay all the witness's expenses. The attorney then pays for airfare and pays to put the witness in one of the nicest hotels in the city, and pays for all of the witness's dining bills at expensive downtown restaurants. The witness reluctantly agrees. Was it proper for the attorney to offer to pay the expenses for a favorable witness to undergo the trouble of testifying at the trial?

Yes, because it is proper to pay a witness's expenses, as long as the attorney does not offer to pay the witness an inducement to provide favorable testimony.

An attorney works in a partnership with one other lawyer. A client wants the attorney to represent her in litigation over a contract dispute, because the attorney helped negotiate the contract. In fact, the attorney was the only other party in the room when the client and the other party reached a final agreement on the terms and signed the contract. The attorney explains that he will probably have to testify as a witness at the client's trial, as the dispute involves the parties' intention regarding a certain ambiguous provision of the contract. The attorney said he would truthfully corroborate the client's version of the events. As a result, the attorney explains, he cannot represent the client at the trial, but his partner at the firm (a two-lawyer partnership) could represent the client instead. The client retained the attorney's partner to represent her in the litigation. Is this arrangement proper?

Yes, because lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness.

A client hired an attorney to handle a transactional matter. The client, a billionaire, wants to devote several million dollars to philanthropy. There are several alternative ways to achieve the client's goals - incorporating a 501(c)3 charitable corporation, establishing a private foundation, creating a charitable trust, operating a nonprofit unincorporated association, or simply donating the money to an existing charity of some kind. Each alternative has different pros and cons regarding immediate tax benefits for the donor versus tax deductions for subsequent contributors, permissible activities for the charitable entity, donor control versus independence, eligibility for government grants, and administrative costs related to accounting and recordkeeping. The attorney does not discuss all of these details with the client, though, because the client said at the outset that he trusted his attorney's judgment, and the attorney believed the client would find the details tiresome and confusing. The attorney set up a private foundation for the client because this seemed to provide his client with the greatest immediate tax benefits and the highest degree of control in the long term. The downside was that the private foundation option involved burdensome paperwork and reporting to the IRS every year, imposed annual spend-down requirements, and limited the tax benefits for any other philanthropists who wanted to donate to the foundation later. The attorney believed the pros outweighed the cons in this case, but the client was unhappy because he wanted to start something that would grow and attract other wealthy philanthropists who might get involved, and the administrative costs drained some of the funds that the client had hoped would go directly to charitable causes. Could the attorney be subject to discipline for how he handled the matter?

Yes, because the Rules of Professional Conduct require a lawyer to consult with the client about the means to be used to accomplish the client's objectives.

Two successful business partners hired an attorney to help with the dissolution of the partnership, as the two partners no longer want to work together. The attorney was very concerned about the obvious conflict of interest, but the partners insisted that they did not want to complicate matters unnecessarily by hiring separate counsel, and that they were already in complete agreement about how to divide the business. They even signed informed consent statements acknowledging and waiving the conflict. Each partner believed it would be in both of their best interests to use only one lawyer to dissolve the business. The matter was purely transactional at this point, and it did not involve any anticipated litigation before a tribunal. One partner had already mentioned to the attorney that he might need his legal services in setting up a new business, as well as handling some estate planning issues for him. The attorney still believed that dual representation was not a good idea, given the complexity of the business and the debatable future value of some of the patents, goodwill, and other intellectual property involved, and because one partner contributed a much larger share of the startup funds years before. The partner who mentioned hiring the attorney to do estate-planning work wanted the dissolution to include assigning his proceeds from the business to his heirs. The attorney proceeded with the dual representation and the dissolution appeared to proceed smoothly. Is the attorney subject to discipline for representing both partners?

Yes, because the attorney did not reasonably believe that he would be able to provide competent and diligent representation to each affected client.

An attorney agrees to represent a client in a divorce proceeding against her husband. The client is particularly concerned about obtaining her fair share of the marital property or assets - as much as possible, in fact as well as a suitable level of child support for their children. The client agrees to pay the attorney his usual flat fee for divorce cases, $5,000, but also offers to pay him 10 percent of whatever he wins in terms of payments and distribution of assets, on top of his usual fee. After a protracted, acrimonious divorce proceeding, the attorney obtains a settlement worth approximately $2 million for the client. Is the attorney subject to discipline in this scenario?

Yes, because the attorney entered into an arrangement for a fee in a domestic relations matter, the amount of which was contingent upon the amount of alimony, support, or property settlement.

An attorney agreed to represent a client as plaintiff in a patent infringement lawsuit. The attorney was part of a partnership that specialized in intellectual property law. The attorney prepared, and the client signed, a written fee agreement that specified the attorney would receive a tiered contingent fee in the case: 25 percent if the case settled before trial, 30 percent if they went to trial and won, and 35 percent if the case went up on appeal and they prevailed in the appellate stage. In addition, the agreement specified that the contingent fee would come from total award before court costs and other expenses, and that the client would be responsible for court costs and expenses out of his own pocket, either along the way as expenses arose during the proceedings, or from the client's share of the award after the attorney received his contingent fee. The attorney never revealed that his partnership agreement required him to share his part of the fees with three other partners in the firm, or that his fees would go toward a general firm operating budget from which the partnership paid the salaries of non-lawyer staff, such as paralegals and secretaries. The attorney obtained a favorable settlement before trial. He telephoned Client with the good news, and explained that he would deduct his 25 percent contingent fee, as they had agreed, and would send Client the remainder of the settlement funds. At that time, there were no outstanding unpaid expenses or court costs. The client was glad to hear the news, and the attorney promptly sent the client a check for 75 percent of the total amount received from the other party. The attorney and the client had no other contact except to exchange holiday greeting cards. Were the attorney's actions improper?

Yes, because the attorney failed to provide the client with a written statement stating the outcome of the matter and showing the remittance to the client and the method of its determination.

An attorney represented a client in a criminal prosecution. The client agreed to a plea bargain, and the case moved on to a sentencing hearing. The prosecution's pre-sentencing report to the judge erroneously indicates that the client has no prior convictions, and the trial judge asked the client directly whether that is true. The client affirmed that he had no prior criminal record, and the judge sentenced him leniently, giving his six months' probation. Yet the attorney had represented the client previously in another jurisdiction in a criminal matter, and he knew that the pre-sentencing report was erroneous. Before adjourning, the judge asked the attorney if he had anything else to say. Could the attorney be subject to discipline if he does not correct the judge's misperception about the client's criminal record?

Yes, because the attorney must not allow his client to offer evidence that he knows to be false to a tribunal.

An attorney represented a client in litigation over a breach of contract. After a long period of discovery, as the trial date approaches, the two parties make a new attempt at settlement negotiations, with each party's lawyer acting as representative. The client is the plaintiff in the case, and has told the attorney on several occasions that she will not consider any settlement offer less than $100,000. The client is a sophisticated business owner who has weathered litigation many times in the past, including litigation over a breach of a nearly identical contract term. Based on her experience, the client has made an informed estimate that her chances of winning a $250,000 verdict at trial are almost exactly 50 percent, and that trial expenses are likely to be around $50,000 whether she wins or loses, and from there she derived her reserve amount of $100,000. The attorney met with the client the evening before Attorney would meet with opposing counsel for negotiations, and the client reiterated her reserve amount to the attorney, adding, "Do not even call me if the opposing party offers less than $100,000- I will not accept it, and want you to simply decline lowball offers.' The next day, the client leaves on a business trip, and the attorney heads to the settlement negotiation meeting, where opposing counsel offers $90,000 to settle plus a written apology from the defendant to Client for breaching their contract. May Attorney reject this offer without first consulting with Client?

Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer.

A client is struggling through a deposition, during which opposing counsel is subjecting him to intense questioning. The attorney, who represents the client, tries objecting a few times in order to break the opposing counsel's momentum, but it was to no avail. The attorney then stood up, shouted, and with a heave overturned the conference table around which the lawyers, court reporter, and deponent were sitting. Notes, cell phones, and open briefcases flew across the room, and the stenographer's equipment tumbled to the floor. The attorney and the client gathered their things and stormed out of the room. A few days later, the attorney called opposing counsel and halfheartedly apologized, and agreed to reschedule the deposition if opposing counsel would agree to behave himself this time. Opposing counsel reported the attorney to the state bar disciplinary authority. Could the attorney be subject to discipline for the way in which he disrupted the deposition?

Yes, because the duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition.

During a trial, the judge overruled an objection by one of the attorneys. The attorney felt that the judge had made a fundamental error and had ignored a clear provision of the official Rules of Evidence. Court adjourned for the day a few minutes later, and the judge retreated to his chambers. The attorney approached the judge's clerk, who was still in the courtroom, and gave him a handwritten note, folded into a square, to pass along to the judge. The clerk gave the note to the judge. The note thanked the judge for recently inviting the attorney to the judge's home, along with sixty other People from the legal community, for a holiday party. It also said that the judge had made a mistaken ruling on the attorney's objection that day, and referred the judge to the relevant provision of the Rules of Evidence. Could the attorney be subject to discipline for his actions?

Yes, because the lawyer communicated ex parte with a judge during the proceeding, without being authorized to do so by law or court order.

A lawyer is engaged in civil litigation. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that the (unrelated) criminal trial happening at the courthouse that day is far more important, and he expresses regret that he is not involved in that case at all. He states that he believes the criminal case should result in an acquittal because the police (who are testifying as witnesses in the case) violated the defendant's civil liberties, and because the relevant penal statute itself, which furnished the basis for charges in the case, violates the Bill of Rights. His own civil case, he says, is a brief matter scheduled for a one-day trial, so he hopes to observe the closing arguments tomorrow in the important criminal case in the other courtroom. Were the lawyer's statements proper?

Yes, because the rule limiting trial publicity applies only to lawyers who are, or who have been involved in the investigation or litigation of a case.

An attorney represents Conglomerate Corporation in a lawsuit against the company brought by an individual plaintiff. The lawsuit could bring very bad publicity to Conglomerate Corporation and could adversely affect its stock share price, Conglomerate offers to settle the matter quietly, but the plaintiff rejects the settlement offer. The attorney then files a counterclaim against plaintiff, alleging libel and slander of Conglomerate Corporation, vexatious litigation, and tortious interference with contract, for which he demands millions of dollars in damages. The attorney and plaintiff's counsel both know these counterclaims lack any real basis in fact, but will be costly for plaintiff to defend. The attorney uses the counterclaims as leverage in reopening the settlement negotiations, offering to withdraw the counterclaims if plaintiff will accept a new, slightly higher settlement offer. The plaintiff calculates the cost of defending against the counterclaims and the difference between the settlement offer and the expected damages if plaintiff wins at trial, and reluctantly agrees to accept the terms of the offer. Could the attorney be subject to discipline for filing the counterclaims?

Yes, because there is no factual basis for the claims, and the lawyer did not bring them in good faith.

An attorney represents a client in a guardianship proceeding. The client is an adult with Down Syndrome and has an IQ far below average, in the "mental retardation" range of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The client's family is trying to have the client institutionalized involuntarily, and the client is fighting this, wanting instead to live semi-independently in a group home. With the help of a social worker, the client has hired the attorney to defend him against the legal proceedings to have the client institutionalized permanently. Having researched this type of case, the attorney knows that case precedents give the client a small chance of prevailing in regular state court, but a good chance of prevailing if the attorney can change the venue to family court or probate court, The attorney has not discussed with the client his decision to seek a change of venue that would be more favorable to the client under that jurisdiction's recent appellate decisions, Switching venue, however, will mean traveling much further (more than an hour) to the proceedings. Is it proper for the attorney to leave the client out of this decision entirely?

Yes, fully informing the client according to the usual ethical standards may be impracticable, because the client suffers from diminished capacity.

An attorney worked for a small plaintiffs' firm in Dallas, Texas. The firm undertook the representation of the victim, who suffered severe injuries in a traffic accident with a large truck, allegedly due to the truck driver's negligence. The attorney was not involved in the case at all; another associate at the firm represented the victim in the lawsuit. Big Firm, which has offices in several states, is defending the trucking company in the personal injury lawsuit brought by the victim. The attorney's small firm has a single office and a computer network that allows the five lawyers there to share documents and files from all their cases with each other. Any lawyer in the firm could access all of the other lawyers' documents, which saved - time as lawyers could copy and paste from various motions and pleadings that other lawyers had drafted previously on unrelated matters. Every Thursday afternoon, there was a mandatory meeting of the lawyers in the firm, in which they discussed whether to: accept the cases of new potential clients, and they discussed how the pending litigation of each lawyer was proceeding. The lawyers exchanged advice and suggestions for one another's cases. The attorney did not make partner at the small firm, so he left and went to the Kansas satellite office of Big Firm instead. Big Firm assigned the attorney to work on-the trucking company case, the same case in which his pervious firm represented the opposing party, The attorney had not worked previously on the case and-had heard about It-only in passing during the weekly litigation meetings at-his previous firm, and now remembers almost nothing from the conversations. Should the attorney be subject to disqualification from defending the trucking company?

Yes, if a lawyer has general access to files of all clients of a law firm and regularly participates in discussions of their affairs, it creates an inference that such a lawyer in fact is privy to all information about all the firm's clients, and the burden of proof should rest upon the firm whose disqualification is sought.

An attorney represented a client in her divorce and custody case. The client's husband had been abusive, so she asked the attorney to obtain a temporary restraining order against her ex-husband. The application for the temporary restraining order is an ex parte proceeding, SO opposing counsel is not present. The attorney knows that the ex-husband has not been physically abusive to the client in over two years, and that he has been faithfully attending an anger-management support group during that time that appears to have produced genuine results. At the same time, the client is fearful that the ongoing custody battle will push her ex-husband over the edge, and that the abuse she endured in the past will resume. At the hearing for the temporary restraining order application, does the attorney have an affirmative duty to disclose the length of time since the last abuse occurred and the ex-husband's faithful participation in an anger management program?

Yes, in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

An attorney represents a small business in a contract dispute with one of its suppliers. The attorney meets with the employees of his client, in groups of four or five at a time, and explains that there is litigation pending, that Big Firm is representing the supplier, and that they should simply decline to discuss the case with anyone, especially lawyers from Big Firm. Was it proper for the attorney to ask the employees not to talk to the other party?

Yes, the Rules of Professional Conduct permit a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client.

An attorney worked for several years for a federal government agency in regulatory enforcement, Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against Conglomerate Corporation. The attorney had worked on an enforcement against Conglomerate Corporation and learned confidential government information about the entity during the litigation. The government agency gives its informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client's matter against the attorney's former employer?

Yes, the attorney has confidential government information about a person acquired while working for the government agency, and therefore may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

An attorney was a judge for several years. Near the end of her tenure as a judge, she functioned in the role of the chief administrative judge in that court, assigning cases to the other judges and supervising their work, and had only a limited docket of her own trials. The attorney then left the bench and opened her own law practice. The attorney agrees to represent the client in a matter in the same courthouse where the attorney formerly served as a judge. The attorney even remembers the case, but only the names of the parties and the nature of the action, because she assigned it to the trial judge who currently has the case on his docket, but the attorney had no other involvement in the matter. The client's previous lawyer in the matter was subject to disqualification at the motion of the opposing party due to a conflict of interest. Is it proper for the attorney to represent the client in this matter?

Yes, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits.

Attorney represented Husband twenty years ago in a divorce with Husband's first wife. Husband is a well-known local celebrity, a retired professional athlete who became a semi- successful actor and an outspoken advocate of a radical political cause. Recently, Husband's third wife approached Attorney asking him to represent her in obtaining a divorce from Husband. There are no children from the marriage-their children from previous marriages are now adults-and the distribution of assets will follow the terms of a carefully drafted prenuptial agreement between Husband and his third wife, which Husband's new lawyer drafted for them. Husband long go provided written Informed consent for future conflicts. of-interest if. Attorney represented another party with adverse interests to Husband. Attorney does not believe that any confidential information learned from representing Husband twenty years ago in his first divorce will be relevant "to the pending third divorce. On the other hand, there is regular media coverage of Husband's trial and on-and-off sexual relationships with the various actresses and female socialites in the area, and marital infidelity could trigger certain exception clauses in the prenuptial agreement. Can Attorney use the information about Husband's recent indiscretions in representing the third wife?

Yes, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known Information about that client when later representing another client.

Lucille Bluth hires attorney Wayne Jarvis to represent her and her family in a complex federal case involving the family business and charges of securities fraud and racketeering. Early in the representation, Lucille and the lawyer; Wayne, start dating and become sexually involved, to the consternation of the rest of the family. Lucille and Wayne rationalize the relationship by saying that they each have "needs" that their new romantic partner meets, and they have even discussed marriage as an eventuality. Is the lawyer subject to discipline for this relationship?

Yes, unless the sexual relationship predates the beginning of legal representation, the lawyer absolutely cannot represent a client with whom he has such a relationship.

An insurer retained an attorney to represent it in a matter, and requested a retainer agreement that limited the representation to matters related to the insurance coverage. The insurance was a homeowner's policy for damage to the policyholder's residential real estate, and included a rider for premises liability. The incident that triggered the claim, however, involved the brutal murder of a woman and her two young children across the street from the house in a neighbor's driveway. Due to the limited scope of his representation, however, the attorney ignored the horrific deaths and the fact that the known killer had escaped conviction on a technicality. In a cool and calculated matter, the attorney focused his work exclusively on the property damage from the incident and the premises liability, and obtained a favorable outcome for the insurer. Was it proper for the attorney to limit the scope of his representation in this way?

Yes, when an insurer retains a lawyer to represent an insured, the representation may be limited to matters related to the insurance coverage; a limited representation may be appropriate because the client has limited objectives for the representation.

A lawyer is representing the defendant in a highly publicized criminal trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that the prosecutor already held a press conference in which she shared that the defendant had refused to take a polygraph test, that DNA tests had confirmed the defendant's guilt, and that the defendant had refused several offers of guilty pleas. To set the record straight before trial, the defense lawyer explains that his client had actually agreed to take a polygraph test but that none had occurred. He adds that defense experts would testify about problems with the DNA tests, and that the plea offers had all been the same (a life sentence instead of the death penalty) and were unacceptable to the client. Were the defense lawyer's statements proper?

Yes, when prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.