MPRE Missed questions
Relevant factors in determining whether lawyers who share office space are deemed a firm include whether they:
hold themselves out to the public as a single unit, frequently consult and assist each other, refer cases to each other, work jointly on cases, and have access to each other's files. All of these factors are present in this case.
In the most recent election, a lawyer who practices election law represented a candidate who, several days before the election, told the lawyer in confidence that he had hired some gangs of thugs to frighten voters away from the polls in neighborhoods where most people would vote for his opponent. The lawyer was shocked and immediately advised the candidate to call off the thugs or withdraw from the race. The candidate refused to do either, whereupon the lawyer withdrew as the candidate's lawyer. The lawyer did not, however, tell anyone about the candidate's evil plan. On election day, the candidate's thugs did what the candidate paid them to do, and the candidate defeated his opponent by a narrow margin. A few days later, the opponent learned what the thugs had done. The opponent was furious and called a press conference at which he accused the candidate and the lawyer of conspiring to intimidate his supporters and keep them away from the polls. The local newspaper printed his allegations in a front-page story, accompanied by a large photograph of the candidate and the lawyer smiling at each other. Which of the following propositions is false? response - incorrect
After the opponent's press conference and the newspaper story, but before any kind of formal proceeding, it would be improper for the lawyer to disclose what the candidate told him in confidence about the thug plan and about his own response.
An entertainment lawyer has for many years represented a country music star. One evening, the lawyer and the music star were having a quiet business dinner together at a restaurant. Another diner approached their table and in a loud voice began a vulgar and defamatory tirade against the music star. Everyone in the restaurant heard the entire exchange. While all of the defamatory comments about the music star involved her personal life, about which the lawyer had no real knowledge, he felt that they could not possibly be true. At the music star's request, the lawyer commenced a slander suit against the diner, after spending considerable time reacquainting himself with slander law. In his answer to the complaint, the diner admitted making the allegedly slanderous statements, and as an affirmative defense, he alleged that the statements were entirely truthful. When the case comes to trial, would it be proper for the lawyer to act as the music star's trial counsel?
Yes, because the lawyer is not a necessary witness. The lawyer may act as the music star's trial counsel because he is not a necessary witness. [ABA Model Rule 3.7(a)] A roomful of witnesses heard the diner's comments and could testify to them. Moreover, the diner has made a judicial admission that he made the statements; thus, no testimony is required on that point. The lawyer has no knowledge as to the truth of the statements, as he knows nothing of the star's personal life; thus, he would have no relevant testimony on that issue. Therefore, the lawyer is neither a "necessary" witness, nor a witness who "ought" to be called.
ABA Model Rule 5.7 provides that when a lawyer offers another kind of service ancillary to her practice of law, and the ancillary service is provided "in circumstances that are not distinct from the lawyer's provision of legal services," the lawyer must
follow the legal ethics rules in the ancillary service as well as the legal service.
Jin is a well-known patent lawyer with a busy schedule. Harold pays Jin $20,000 so that Jin will be available to represent him in an upcoming patent dispute. Subsequently, Harold and Jin enter into a "nonrefundable retainer agreement." In accordance with the agreement, Harold pays Jin $100,000 for legal fees up front, to be credited against Jin's hourly rate. Mid-way through the case, Jin has done $50,000 worth of work. Harold decides he wants a new lawyer, fires Jin, and demands a refund. What, if anything, is Jin required to give back to Harold?
$70,000 A lawyer may require their fee to be paid in advance, but they must refund any unearned part of the advance if they withdraw or are fired. Harold has made an advance payment of $100,000 for legal fees. Jin has done $50,000 of work, which means that $50,000 of the payment is unearned. This is the amount that Jin must refund to Harold. It is immaterial that their agreement was deemed "nonrefundable" and a "retainer"—the terminology is not controlling. A true retainer fee is something different—it is money paid solely to ensure the availability of the lawyer. A lawyer who is fired or withdraws generally need not refund a retainer fee. The $20,000 that was initially paid solely to ensure Jin's availability was a retainer fee, and Jin is not required to return it to Harold.
An attorney volunteers her legal services one night each week at a county legal advice hotline. The hotline is run under the auspices of the superior court, and it supplies free legal advice by telephone to callers who could not otherwise obtain legal services. Every caller assents to a "Statement of Understanding" at the outset of the call, informing the caller of the limited nature of the legal services that the hotline provides. Eighty-five lawyers volunteer their services as the attorney does. They come to the hotline office at various times on various days, and the volunteers hardly ever see or talk with each other. The nature of the hotline's work makes it impossible for the lawyers to conduct the kind of conflict-of-interest checks that an ordinary law firm would conduct before taking on a new client. One Tuesday night, the attorney counseled a distraught mother about her husband's physical and mental abuse of their school-age children. The attorney told the mother how to seek help from Child Protective Services. On the following Friday evening, a different hotline lawyer volunteer counseled the mother's husband about how to prevent Child Protective Services from scooping up his children and putting them in a foster home. Because the hotline does not do conflict-of-interest checks, the lawyer who counseled the husband had no way to know that the first attorney had counseled the mother a few nights before. Which of the following is correct?
Both lawyers and the judges of the superior court all acted properly because the hotline cannot do the kind of conflict-of-interest checking that a private law firm would do. The county legal advice hotline is the kind of operation envisioned in ABA Model Rule 6.5. Under ABA Model Rule 6.5, walk-in legal clinics, advice-only clinics, legal advice hotlines, and the like are not held to the high conflict-of-interest standards that govern ordinary law offices. Legal hotlines, walk-in clinics, and similar providers of quick legal service typically operate under conditions that make it difficult or impossible to conduct ordinary conflict-of-interest checks. Under ABA Model Rule 6.5(b), the second lawyer would be subject to discipline only if he actually knew that the first attorney had previously counseled the mother of the abused children. A lawyer's actual knowledge can be inferred from the circumstances [ABA Model Rule 1.0(f)], but the question does not mention any circumstances from which an inference could be made that the second lawyer had actual knowledge.
An attorney knows that the statute of limitations on her client's claim has run. However, the statute of limitations is an affirmative defense that the defendant in the case would waive if she failed to plead it. The attorney's client is willing to incur the legal fees and court costs of filing the lawsuit, and understands the risks. What may the attorney do?
File the suit because her client is willing to incur the legal fees and court costs. the claim is not frivolous under ABA Model Rule 3.1. The statute of limitations merely destroys the remedy and not the right. Unless the defendant pleads the statute of limitations, the claim is valid.
A lawyer represents a plaintiff in a sexual harassment case against her employer. The employer is represented by its regular corporate counsel. The plaintiff, who works on an assembly line, alleges that she was repeatedly harassed by the foreman on her work shift. Furthermore, she alleges that the plant manager was aware of this misconduct and did nothing to stop it. The plaintiff tells her attorney that two of her co-workers on the assembly line witnessed harassment incidents, but neither reported the incidents to supervisory personnel. One of the witnesses quit working for the employer at about the time the plaintiff filed her lawsuit. The lawyer wants to do some fact investigation before he starts discovery in the case, and wishes to interview the plant manager, the foreman, and the two co-worker witnesses. Which of the following best states proper conduct for the lawyer in interviewing these individuals?
He may freely interview both witnesses, but he must obtain defense counsel's consent to interview the foreman and the plant manager. It would be proper for the lawyer to interview both witnesses, but for the others, he must first obtain defense counsel's consent. A lawyer must obtain the consent of an organization's counsel before communicating with: (i) a person who supervises, directs, or consults with the organization's lawyers about the matter (here, the foreman and the plant manager); (ii) a person whose conduct may be imputed to the organization for purposes of criminal or civil liability (the foreman and the plant manager again); or (iii) a person whose statements may constitute an admission by the organization (again, the foreman and the plant manager). [Comment 7 to ABA Model Rule 4.2] Consent is not needed, however, before talking with a former employee. Thus, the lawyer can speak to the witness who no longer works for the defendant without defense counsel's consent. Likewise, consent of defense counsel is not necessary to interview an employee who is merely a witness to the incident in question and is neither a management employee nor involved in the incident. Thus, the lawyer may interview the witness who still works for the defendant without defense counsel's consent.
An inventor asked a patent lawyer to represent him in obtaining a patent on a new computer technique for predicting the growth patterns of tumors in the human body. The lawyer informed the inventor that he had never worked on that kind of patent application before, and that he would have to do extensive background research on the patentability of computer techniques. The lawyer will be able to use the knowledge that he gains through the research to serve other clients who wish to obtain patents for all manner of other computer techniques. The lawyer offered to do the work for the inventor for his standard hourly rate, but the inventor proposed instead to assign the lawyer a 10% interest in the patent, if and when it was issued. The lawyer agreed to do the work on that basis, and he and the inventor entered into an appropriate written fee agreement. The lawyer did the work; the patent was ultimately issued and proved so valuable that the lawyer was able to sell his 10% interest for $9.7 million (which was a reasonable fee for the work performed). Is the lawyer subject to discipline?
No, because $9.7 million is not an unreasonably high fee for the work that the lawyer did. The lawyer is not subject to discipline because $9.7 million is within the bounds of reason as a fee for the work the lawyer did. [See ABA Model Rule 1.5(a)] Among the various factors that point to the reasonableness of the lawyer's fee are: the novelty and difficulty of the patentability issue, the fact that the inventor was the one who suggested the fee arrangement after having been offered a standard hourly fee, the value of the result that the lawyer obtained for the inventor, and the contingent nature of the arrangement, which imposed a high risk on the lawyer. (A) is wrong because a lawyer is prohibited from acquiring a proprietary interest in the subject of litigation he is conducting [ABA Model Rule 1.8(i)], and obtaining a patent is not litigation. Even if this were a litigation case, the contingent fee exception to the rule would apply. [
A public defender was assigned to represent a defendant at the defendant's preliminary hearing on a charge of kidnapping for ransom. Against the public defender's advice, the defendant testified on his own behalf at the preliminary hearing. The defendant was bound over for trial. At that point, the defendant's brother provided money to hire a private lawyer to represent the defendant, and the public defender was discharged. The defendant testified on his own behalf at the trial, and the matter concluded after the jury acquitted him. Later, in connection with his work on another matter, the public defender read the transcript of the defendant's trial. Based on information the public defender learned while representing the defendant, the public defender concluded that the defendant had committed perjury, both at the preliminary hearing and at the trial. However, the public defender does not believe that the defendant poses a danger to the community. May the public defender reveal the defendant's perjury?
No, because disclosure would violate the public defender's duty of confidentiality. The public defender may not reveal the defendant's perjury because to do so would violate the public defender's duty of confidentiality. No exceptions to the confidentiality requirement apply to these facts. There is no indication that revealing the perjury is necessary to prevent reasonably certain death or substantial bodily harm. Also, there is no indication that the defendant's perjury is a crime that is reasonably certain to result in substantial injury to the financial interests of another, in furtherance of which the defendant has used the public defender's services. The obligation to reveal perjury under the Model Rules does not apply because that obligation ceases at the end of the proceedings, and both proceedings here have concluded.
The mayor of a small city is also a licensed attorney who has a law partnership with a fellow attorney in the city. Under the city's charter, the mayor has the authority to determine what issues are to be placed upon the agenda of the city council. Several council members have told the mayor that they would like to see a particular zoning measure placed upon the agenda. This proposed ordinance would ban commercial development of a certain area within the city limits. The mayor's law partner has been retained as attorney for a development company that has acquired land in the proposed noncommercial zoning area and has plans to construct a large shopping center there. The mayor has agreed to take no direct role in the representation, not to share any fees from the case, and not to attend any city council meetings at which the matter will be discussed. May the mayor's law partner represent the development company in this matter?
No, because of the mayor's position as mayor. If one lawyer within a firm has a conflict of interest and cannot take on a matter, no other lawyer in the firm may take on the matter either. [ABA Model Rule 1.10(a)] One situation that would create a concurrent conflict would be if there is a significant risk that the representation of a client will be materially limited by the lawyer's own interest or his responsibilities to another client, a former client, or a third person.
The plaintiff in a personal injury suit arising out of an automobile collision asserted that he had the right-of-way to enter the intersection where the accident occurred. The defendant claimed otherwise, but the plaintiff told his attorney that there was a witness present who would be able to verify his version of the accident. The plaintiff's attorney obtained a copy of the police report on the accident, but the name of the witness was not contained in the report. The plaintiff's attorney contemplated running an ad in the newspaper or hiring an investigator to find the witness, but she reasonably concluded that her client's testimony ought to be strong enough to win the case. The case went to trial, and the jury found for the defendant. Is the plaintiff's attorney subject to discipline for failure to try to find the witness?
No, because she reasonably believed that her client's testimony would be sufficient. A lawyer must provide competent representation to a client. [ABA Model Rule 1.1] This includes use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. In the case at bar, the plaintiff's attorney's decision on whether to further search for the unknown witness was a matter of judgment. If she was reasonable in believing that the plaintiff's testimony would be sufficient, then her preparation will not be deemed inadequate.
A young associate was assisting a senior partner in writing the reply brief in an appeal for one of the partner's clients. In doing the legal research, the associate discovered a recent case from the controlling jurisdiction that had not been cited in the adversary's brief. In the associate's opinion, the case was directly opposed to the position of the partner's client. The associate asked the partner about citing it in the reply brief, but the partner explained that, in his view, the case was not directly on point and did not have to be cited. The associate and the partner argued back and forth at some length and finally decided to submit the question to one of the other senior partners in the firm for a fresh view. That partner sided with the other partner, and the reply brief was filed without mentioning the case. May the associate write a short letter to the appellate court and the adversary lawyer, explaining his position and enclosing a copy of the case?
No, because the associate should abide by the partner's resolution of the matter. The associate should abide by the partner's resolution of the matter. A subordinate lawyer does not violate the Rules of Professional Conduct by acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty. [ABA Model Rule 5.2(b)] Here, it seems clear that the question was arguable because the third attorney called in to determine the relevance of the case also felt it was not on point. (A) is wrong because the associate only has a duty to call the case to the court's attention if the case is directly on point. That is a debatable question, and the associate's supervisors have determined the case is not directly on point. Thus, the associate need not reveal the case.
For many years, a tax attorney has handled all of the tax work for his client, a sculptor. One evening, the sculptor invited the attorney to his studio to discuss some tax returns that had to be filed the next day. In the studio, the attorney saw a small sculpture that would be perfect for his office. At the close of their tax discussion, the attorney offered to buy the sculpture for $10,000, its approximate fair market value. The sculptor told the attorney that it was not for sale. In due course, the attorney sent the sculptor a bill for a $750 fee for the tax work. A few days later, the small sculpture was delivered to the attorney's office with a note from the sculptor, saying that he hoped the sculpture would satisfy the recent bill, and he wanted the attorney to have the sculpture as a token of his gratitude for the excellent tax advice. Would the attorney be subject to discipline for accepting the small sculpture from the sculptor?
No, because the attorney did not solicit the gift. The attorney would not be subject to discipline for accepting the sculpture because he did not solicit the gift. Although ABA Model Rule 1.8(c) prohibits a lawyer from soliciting a substantial gift from a client when the lawyer is not related to the client, it does not prohibit a lawyer from accepting an unsolicited gift from a client, even if the gift is substantial (although the gift may be voidable for undue influence). Moreover, comment 6 to ABA Model Rule 1.8 states that a lawyer may accept a gift from a client if the transaction meets general standards of fairness. Here, the attorney did not solicit the gift, and there are no facts to suggest undue influence or unfairness. Thus, the gift is proper.
A man walked into a lawyer's office and explained that he is a dealer of illegal drugs, that one of his sales associates has just been arrested, and that he would like the lawyer to defend the sales associate. The drug dealer offered to leave a $10,000 retainer comprised of a shoebox of $100 bills. The lawyer was uncertain about getting involved with the drug dealer and especially about accepting a large sum in cash from the dealer. The lawyer told the dealer that he would think about his request and would let him know later that day. When the drug dealer left the office, the lawyer telephoned his friend and mentor, a retired judge. The lawyer told the judge the entire story, including the dealer's name, and asked the judge whether it would be ethical to defend the sales associate and accept the dealer's cash. Is the lawyer subject to discipline for telling the judge the whole story?
No, because the ethical duty of confidentiality has an exception that allows a lawyer to reveal confidential information to obtain legal ethics advice. ABA Model Rule 1.6(b)(4) and comment 9 explain that a lawyer may reveal information that would otherwise be confidential if the lawyer's purpose is to obtain legal advice about complying with the legal ethics rules.
An attorney worked at the United States Department of Labor and was responsible for compiling certain corporate safety records into an annual report containing the accident statistics. The report is used internally and in discussions with companies, but it is not distributed to the general public. However, a person may obtain a copy of the report by filing a formal request under the Freedom of Information Act. During the last three years, Company A has had more accidents than any of the other reporting companies. Six months ago, the attorney left the Labor Department and took a job with a private law firm. Recently, a person came to the attorney seeking representation in a suit against Company A for injuries he sustained while working at Company A's factory. The attorney agreed to represent the client. Is the attorney subject to discipline?
No, because the information is available by formal request under the Freedom of Information Act. The attorney is not subject to discipline for taking the case because the relevant information he obtained while working as a government attorney is not confidential. The general rule is that a government lawyer who receives confidential government information about a person must not later represent a private client whose interests are adverse to that person, if the information could be used to the material disadvantage of that person. [ABA Model Rule 1.11(c)] The rule covers only "confidential" information, which means information that the government is prohibited from revealing or has a privilege not to reveal, and which is not otherwise available to the public. Here, because the information is available under the Freedom of Information Act, it is not confidential. In fact, any attorney representing the client could obtain the information; thus, the attorney is free to use it.
A district court judge heard through the "courthouse grapevine" that the district attorney was investigating corrupt practices in the courts and that the investigation focused on some as yet unascertained time in the past. The "rumor mill" also indicated that several judges and former judges were likely to be indicted for taking bribes to "fix" cases and to generate business for certain attorneys. The judge was alarmed at this news, and he telephoned a retired attorney, arranging to meet him for cocktails and dinner. At the restaurant, the judge slipped the maitre d' a 10-dollar bill to secure seating at a secluded corner booth. Over dinner, the judge told the retired attorney that he had accepted bribes in the past and that he did not know what he should do in light of the district attorney's investigation. The retired attorney advised the judge to do nothing. The judge picked up the $120 dinner tab, and the retired attorney thanked him for the fine meal. A month later, indictments were handed down against two sitting judges and three former judges. The judge was not among them, and it turned out that the period covered by the district attorney's investigation was prior to the judge's election to the bench. Six months after the indictments were announced, a member of the state appellate court died, and the governor announced that he was appointing the judge to serve the remaining three years of the justice's unexpired term. Must the retired attorney report his knowledge of corruption in office by the judge?
No, because the judge's disclosures to the retired attorney dealt with past crimes. Although the retired attorney has retired from active practice, it is clear from the facts that the judge consulted him as an attorney, rather than as a friend; thus, the retired attorney may not reveal the judge's disclosures of past crimes.
A consumer who bought a defective product that injured him hired a lawyer to represent him in a personal injury action against the large corporation that made the product. As the consumer and the lawyer discussed the case, the consumer stated that he probably would not agree to a settlement under $500,000. The lawyer agreed that the claim was worth at least that, but felt they would receive a much higher award if the case went to a jury. Shortly before the trial started, the lawyer for the corporation contacted the consumer's lawyer with a settlement offer of $150,000. The consumer's lawyer tried to call his client, but could not reach him. After two hours of trying to reach his client, the attorney called opposing counsel and rejected the offer. At trial, the jury awarded the consumer $1 million. Is the consumer's lawyer subject to malpractice liability for his actions?
No, because the jury award was much greater than the settlement offer. The consumer's lawyer is not subject to malpractice liability because his client (the consumer) has no damages. Damages are part of the cause of action for legal malpractice. The lawyer may be subject to discipline, but not malpractice liability
A long-term named partner in a law firm was approached by officials of his political party about running for governor of the state, and after some deliberation, decided to run. The law partner won both the primary and the general election and was recently sworn in as the state's new governor. Although the law partner has made it clear to his other law partners and the public that he will not practice law during his tenure as governor, he still has fees coming due from prior cases and the senior partner of his firm has decided to leave the law partner's name on the firm's stationery and on the door of the firm's plush offices. Is the senior partner's decision proper?
No, because the now-governor is not actually practicing with the firm. A private law firm must not use the name of a lawyer who holds public office during any substantial period in which the lawyer is not regularly and actively practicing with the firm
An attorney is representing a defendant in a civil case that arose out of a business deal gone sour. One evening after court was out of session, but with the trial set to resume the next day, the attorney attended a $5,000 per person charity fundraising dinner. When he found his assigned seat, he was shocked to find that he was seated next to the plaintiff in the suit. The attorney asked the hostess if she could change his seat, but she said it would be impossible. Determined to make the best of it, the attorney and the plaintiff did not discuss the case but made small talk about the charity, the weather, etc. They soon found that they had much in common, including a love of sports. After a long, enjoyable evening of discussing their favorite teams, the plaintiff gets up to leave. He turns to the attorney, and says he has enjoyed talking with him, and says that he intends to call his attorney first thing in the morning to talk about reaching an agreeable settlement in the case. The next day, the plaintiff calls his lawyer and tells her that after talking to the defendant's attorney the evening before at a fundraiser, he has decided to settle the case for the amount proposed in the last negotiating session. The plaintiff then instructs his lawyer to draw up the appropriate papers. Furious, the plaintiff's lawyer does as her client asks, but reports the defendant's attorney to the proper disciplinary authorities. Is the defendant's attorney subject to discipline?
No, because they discussed the charity, the weather, and sports. The defendant's attorney is not subject to discipline because he did not discuss the case with the plaintiff. It is permissible for a lawyer to talk to a represented party without his lawyer's consent if they do not discuss the subject of the representation. [ABA Model Rule 4.2 and comment 4] Because the attorney and the plaintiff discussed the charity, the weather, and sports, the attorney did not act improperly.
The law of a particular state prohibits agreements not to compete, except for agreements that are ancillary to the sale of a business or professional practice and are reasonable in both duration and geographic scope. For 20 years, an attorney practiced patent, copyright, and trademark law in an area within the state. Seeking a new challenge, the attorney entered the political race for a trial court judgeship. He won a four-year term. Before taking the oath of judicial office, the attorney sold his entire law practice to a young lawyer for $150,000. In the sale contract, the attorney promised the younger lawyer not to re-enter the practice of patent, copyright, or trademark law in the area for five years. At the end of his four-year term, the attorney ran for re-election to his judgeship; to everyone's great surprise, he lost the election to a much less qualified opponent. Because he needed to earn a living, the attorney immediately re-entered the practice of patent, copyright, and trademark law in the area in which he formerly had practiced. Is the attorney subject to discipline?
No, but the attorney could be subject to civil liability to the younger lawyer in a suit to enforce the agreement not to compete, assuming that the agreement was reasonable in duration and geographic scope. ABA Model Rule 1.17 permits a practicing lawyer to sell his entire law practice or an area of his law practice to one or more lawyers or law firms. That is what the attorney did here shortly before becoming a judge. One of the conditions specified in ABA Model Rule 1.17 is that the seller must cease "to engage in the private practice of law . . . in the [jurisdiction or geographic area] in which the practice has been conducted." [ABA Model Rule 1.17(a)] The attorney satisfied that condition by becoming a judge-engaging in judicial duties does not constitute the private practice of law, nor does working as a government lawyer, lawyer for the poor, or an in-house lawyer for a business. [See comments 2 and 3 to ABA Model Rule 1.17] The attorney's re-entry into private practice does not violate ABA Model Rule 1.17 because it was caused by an "unanticipated change in circumstances"-i.e., his failure to win re-election. [See comment 2 to ABA Model Rule 1.17, which uses re-election defeat as an example of "unanticipated change"]
A lawyer practices in State A. State A's rules of legal ethics depart from the ABA Model Rules in one significant respect: State A has no "financial injury" exception to the lawyer's duty of confidentiality. Thus, when a State A lawyer learns in confidence that her client is about to use her legal services to inflict serious financial injury on someone, the lawyer may withdraw, but she must not reveal what she learned in confidence. The lawyer limits her practice to federal securities law, and she regularly appears before the Securities and Exchange Commission ("SEC"). One of her major clients is a company that makes and sells cotton textiles. The company's shares are traded on the New York Stock Exchange and in securities matters the company is regulated by the SEC. While working on an SEC registration statement for the company, the lawyer learned in confidence that three of the company's top executives were cooperating in a scheme to loot the company of millions of dollars. If their scheme continues, it could drive the company into insolvency. The lawyer alerted the chief legal officer of the company to the situation, but he did nothing. She then alerted the chief executive officer, who also did nothing. Finally, she alerted the six outside members of the board of directors, but they too failed to act. In disgust, the lawyer withdrew from the matter and vowed never again to represent the company. Must the lawyer now tell the SEC about the scheme?
No, the SEC's regulations give her discretion to either reveal or not reveal the matter to the SEC. The SEC's regulations under the Sarbanes-Oxley Act permit, but do not require, a securities lawyer to reveal a client's confidential information to the SEC when the lawyer reasonably thinks that doing so is necessary to prevent or rectify a securities act violation (or similar law violation) that is likely to cause substantial financial injury to the client or its shareholders.
A car owner is insured under an auto liability policy issued by a nationally known insurance company. The policy requires the insurance company to provide a lawyer to defend the car owner, and it requires the car owner to cooperate in the defense. The car owner had an accident and was sued. In a sworn statement to the insurance company's investigator, the car owner told a story that showed he was clearly not at fault. Based on that story, the insurance company rejected plaintiff's offer to settle the case for a modest sum. The insurance company hired an attorney to represent the car owner at the trial of the case. Shortly before trial, the car owner told the attorney in confidence that he had lied to the investigator, and he recounted facts that showed he was clearly at fault in the accident. The attorney realized that under the applicable state law, the car owner's falsehood was a breach of the "cooperate in the defense" clause, and that it relieved the insurance company of any further duties to the car owner. At this juncture, what must the attorney do?
Promptly seek the court's permission to withdraw from the matter, without revealing the car owner's confidential statement to anyone. Ordinarily, an attorney can act for both the insured and the insurance company because their interests are only potentially in conflict. But here they have come into present, actual conflict. The insurance company's attorney cannot adequately represent the car owner without harming the insurance company, and he cannot protect the insurance company's interests without harming the car owner. Therefore, he must seek the court's permission to withdraw from the case entirely, and he must not reveal the car owner's confidential statement.
Over the past year, a local judge was paid for teaching a course in advanced trial practice at a seminar for practicing attorneys. The judge also wrote an article about fly fishing for a national magazine, served as the weekend manager at a local antiques store, and drafted a will for her aged father. Which of the judge's activities was improper?
Serving as the weekend manager at a local antiques store. CJC Rule 3.11(B) states that generally a judge must not serve as a manager or employee of a business.
Abby is licensed to practice in State A but received "pro hac vice" permission from State B to represent a client in a lawsuit in State B court. During the State B litigation, Abby does something that violates the rules of professional conduct of State B. However, the action is permitted under State A's rules. State B's choice of law rule follows the ABA model rule. Which state's rule will apply to Abby's conduct?
State B, because that is where the litigation took place The choice of law rules are as follows: If the conduct in question occurred in connection with a proceeding that was pending before a tribunal, the ethics rules of the jurisdiction in which the tribunal sits will be applied, unless the tribunal's rules provide otherwise. For any other conduct, the rules of the jurisdiction in which the predominant effect of the conduct occurred will apply (but note that if the lawyer reasonably believed that the predominant effect would be somewhere else, the lawyer won't be subject to discipline if the conduct would have been proper in that other jurisdiction). Because Abby's misconduct occurred in connection with litigation pending before a State B court, State B's rule will apply.
A buyer of materials employed by a midsize company that did some business with the state and local government was questioned by an attorney hired by the company president to look into suspected wrongdoing within the purchasing department. Initially, the buyer was told by the company president that the attorney was studying the buying process to make sure that the company's procedures comply with all applicable laws and regulations. During the questioning, the buyer broke down and admitted to taking bribes to fix bids. He also described company-wide practices that could subject the company to civil and criminal liability. In an effort to avoid publicity and liability, the company fired the buyer but agreed not to turn the matter over to the police. Additionally, the company hired a new buyer whose reputation for integrity was beyond reproach to take over the buying of materials for the company. Some time later, the company was sued by a customer for wrongdoing that arose out of one of the company-wide practices reported by the former buyer to the attorney. During the trial, the plaintiff calls the company's attorney to the stand to testify about his conversation with the former buyer. The attorney objects, claiming attorney-client privilege. The objection should be:
Sustained, because the buyer talked to the company's attorney at the company president's request and his statements concern the buying of materials only. The objection should be sustained because the communication falls under the attorney-client privilege. [See generally comment 3 to ABA Model Rule 1.6] When the client is a corporation, the privilege covers communications between the lawyer and an employee of the corporation if: (i) the employee communicates with the lawyer at the direction of his superior; (ii) the employee knows the purpose of the communication is to obtain legal advice for the corporation; and (iii) the communication concerns a subject within the scope of the employee's duties. Here, the buyer was directed to speak with the company attorney about buying practices, and he believed the reason was to procure advice for the company.
An attorney who was popular in the legal community decided to run against an incumbent judge in the forthcoming election. The judge was widely regarded by members of the local bar as a "party hack," who had no business being on the bench. The opposition party was very pleased to be able to slate the attorney because she had a high reputation for intelligence, honesty, and overall competence as an attorney. The attorney realizes that she will have to fight an uphill battle to unseat the judge because her political party is a minority party in the county and most voters know very little about judges and candidates for the judiciary and therefore, voters are likely to vote a straight ticket for judges of their own political party. The attorney wants the public to know that the judge has been a poor judge, but she also wishes to comply with all ethical rules governing judicial campaigns. The attorney's best friend and chief advisor, also a lawyer, suggests that the attorney should make some prepared statements during her campaign. Assuming that all the facts cited in the statements are accurate, which statement would not be proper for the attorney to make during her judicial campaign?
That a recent newspaper article comparing judges of the county stated that her opponent had handed out an average sentence of only two years to persons convicted of serious felonies, and that she would not be soft on crime. ABA Model Rule 8.2(a) bars attorneys from making false statements about candidates for the judiciary. Furthermore, CJC Rule 4.1(A)(11) prohibits a judicial candidate from knowingly, or with reckless disregard for the truth, making a false or misleading statement. The question states that all the facts in the statements are accurate. However, in (D), the assertion that she will not be soft on crime violates CJC Rule 4.1(A)(13), which prohibits a judicial candidate from making pledges, promises, or commitments, with respect to cases, controversies, or issues that are likely to come before the court, that are inconsistent with the impartial performance of the adjudicative duties of the office.
The state bar certifies specialists in nine fields of law, one of which is tax law. An attorney has not yet earned her certificate of specialization in tax law, but she is working toward that goal. The attorney's ad states that she is a specialist in tax law, and that tax law is a field in which the state bar grants certificates of specialization. The attorney limits her practice to tax matters; she refers all other kinds of legal matters to a solo practitioner in general practice. The solo practitioner, in turn, refers all tax matters to the attorney. Without exception, the solo practitioner and the attorney have followed that pattern of referrals for five or six years; they have no formal reciprocal referral agreement, but each invariably follows the pattern, expecting the other to reciprocate. Which of the following most correctly describes the attorney's situation?
The attorney is subject to discipline for her ad, and her referral relationship with the solo practitioner is improper because it would need to be nonexclusive, and the two lawyers would need to disclose it to referred clients. ABA Model Rule 7.2(c) prohibits a lawyer from stating or implying that she is a certified specialist unless she has been certified by an appropriate organization that is clearly identified in the lawyer's communication. The attorney's ad appears to have been artfully crafted to make unsophisticated readers think that the attorney has been certified by the state bar. Thus, the ad violates both ABA Model Rule 7.2(c) and ABA Model Rule 7.1, which prohibits misleading advertising. As for the attorney's reciprocal referral relationship with the solo practitioner, the applicable rule is ABA Model Rule 7.2(b)(4), which permits a reciprocal referral agreement between lawyers, provided that the agreement is nonexclusive and the referred clients are told about the existence and nature of the agreement. ABA Model Rule 7.2(b)(4) has not yet been prominently interpreted, leaving one to wonder whether the relationship between the attorney and the solo practitioner should be regarded as an "agreement." On the one hand, the question states that they have no "formal reciprocal referral agreement." On the other hand, in some legal contexts, a consciously reciprocal course of dealing can be the equivalent of an agreement. [See, e.g., United States v. Container Corp. of America, 393 U.S. 333 (1969)-competitors' reciprocal exchange of price data was held to be an agreement under section 1 of the Sherman Antitrust Act] However, for purposes of this question, the relationship between the attorney and the solo practitioner will be deemed an agreement under ABA Model Rule 7.2(b)(4) because it is bound to influence their judgment about referrals to some degree. Here, the relationship violates the nonexclusive requirement because the two lawyers follow the pattern "without exception." Furthermore, the relationship would be proper only if the attorney tells referred clients about the relationship so that they can decide for themselves how to value the referral. One can reach the same conclusion by applying ABA Model Rule 1.7(a)(2)-the attorney's reciprocal relationship with the solo practitioner gives the attorney a personal interest (obtaining future referrals) that is in conflict with the interest of her client (obtaining an unbiased referral). The conflict could be solved only by full disclosure and informed consent of the affected client, confirmed in writing. [ABA Model Rule 1.7(b)]
An attorney is a partner in a 300-member law firm that serves as outside general counsel to one of the world's largest manufacturers of tactical-guided missiles. The manufacturer employs many engineers, mechanics, and assembly line workers who have immigrated to the United States from various parts of the world. The United States Department of Homeland Security "strongly advised" the company to fire 42 of these employees, whose names appear on the federal government's terrorist watch list. The manufacturer regards all 42 people as valuable, dependable employees, so it consulted the attorney in the strictest of confidence, asking for legal advice about what to do. Other lawyers at the attorney's law firm were not told about the manufacturer's request, nor about the advice that the attorney gave the manufacturer. The manufacturer ended up firing two engineers and one assembly line worker, but it kept the other 39 people. The fired assembly line worker went to a storefront legal clinic to obtain some advice about his legal rights. The clinic is run by a nonprofit religious organization; the clinic's mission is to offer free, fast legal advice to anyone who cannot afford to obtain it elsewhere. The clinic receptionist sent the worker to the desk of a volunteer lawyer who is a brand new associate in the attorney's law firm, and she did not know that the manufacturer is one of the firm's clients. She also knew nothing about the advice the attorney gave the manufacturer. The volunteer lawyer dutifully advised the worker of his rights under state and federal employment law and under the collective bargaining agreement between his union and the manufacturer. Based on that advice, the worker sued the manufacturer for discriminatory termination; the attorney represented the manufacturer in that litigation. Which of the following is correct? response - incorrect
The volunteer lawyer's conduct was proper because she did not know that the manufacturer was her law firm's client or that the attorney had advised the manufacturer on the issue at hand. This question is governed by ABA Model Rule 6.5, which relaxes the ordinary conflict of interest rules for legal service programs that offer quick legal advice to a client without expectation that the lawyer will continue representing the client. ABA Model Rule 6.5(a)(2) states that the ordinary rule of imputed disqualification will apply only if the lawyer who offers the quick legal advice knows that a different lawyer in her firm would be disqualified by a conflict, and "knows" means actually knows. Here, the volunteer lawyer did not know that the attorney had advised the manufacturer on the matter; indeed, she was a new associate and did not even realize that the manufacturer was one of the firm's clients. Therefore, the volunteer lawyer acted properly in advising the fired worker. (B) is wrong because ABA Model Rule 6.5 recognizes that quick-service providers cannot realistically perform the thorough conflicts checks that private firms perform.
An attorney who is engaged in private practice in the city in which he lives has many friends who belong to a fraternal and charitable society with chapters throughout the state. The attorney is not a member of the society, but knows a number of its officers socially and has performed legal work for them on matters unrelated to the society. The officers of the society are sometimes consulted by members who have legal problems. The officers, being very pleased with the quality of the attorney's work, often refer such members to him. The attorney has never asked the officers for such referrals, but is, of course, very pleased because he has earned substantial fees from these referrals. The society is presently organized as an unincorporated association, but the leaders are interested in incorporating the society under the state's Nonprofit Corporation Act. One of the officers asks the attorney what his fee would be for incorporating the society. The attorney tells the officer that he is very grateful for the client referrals from the society and, as a token of his appreciation, he will not charge a fee for the incorporation work. Is the attorney subject to discipline?
Yes, because an attorney must not give something of value in return for client referrals. An attorney must not give anything of value to a person (or organization) for recommending his services. [ABA Model Rule 7.2(b)]
A partner in a law firm has represented a local manufacturing company for many years. The company gives the bulk of its legal business to the partner. The partner also does some collection work for the company. A number of the company's customers have not paid their bills, and the partner is in the process of obtaining judgments against them. These particular judgments are all default judgments, as none of the customers have filed answers to the complaints within the time limit stated. Thus, the judgments will be handled in a routine manner by the court with virtually automatic rulings in favor of the company. In the meantime, an associate in the partner's law firm who has never done any work for the company has been retained by a telecommunications company to draw up a number of contracts. The partner files the papers for default judgments against the manufacturing company's delinquent customers. Among these customers is an unincorporated division of the telecommunications company, a fact that is not discovered by the partner until after he has filed the papers. The partner tells the associate who, in turn, tells the appropriate officer of the telecommunications company that he will have to withdraw from representing his company because of a conflict of interest. After explaining the problem fully to the telecommunications company's officer, they part on very cordial terms with the associate being given permission to withdraw. The partner proceeds with his cases against the manufacturing company's delinquent customers. Is the law partner subject to discipline?
Yes, because he did not obtain informed consent, confirmed in writing, from the manufacturing company. Here, there is a potential conflict because the partner's actions against the unincorporated division of the telecommunications company could be affected by the firm's past and possibly future representation of the telecommunications company. It would be proper that disclosure of the conflict of interest be made to the manufacturing company
An attorney is licensed to practice law in State A, but he is not engaged in the active practice of law. The attorney and his non-attorney partner operate a temporary placement service for legal secretaries in State B. The attorney performs most of his work for the agency in State A and is not licensed to practice law in State B. Neither does he hold himself out to be so licensed. An investigation by State B authorities results in the discovery that the attorney and his partner have intentionally filed improper state business tax returns. Is the attorney subject to discipline in State A?
Yes, because his actions in State B constitute fraud. The attorney is subject to discipline because his actions in State B constitute fraud. A lawyer is subject to discipline not only for violating a disciplinary rule, but also for committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, or for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. [ABA Model Rule 8.4] The type of fraud described clearly falls within this rule.
An attorney is admitted to practice only in State A, where he specializes in securities and real estate finance law. In that role, the attorney advised his client that the law of State B did not require the client to include information about certain mineral rights in a disclosure statement that the client had to file in State B in order to sell some real estate limited partnership interests to State B citizens. Acting on the attorney's advice, the client did not disclose the information and did sell partnership interests to State B citizens. Later, the attorney became a full-time trial court judge in State A. Later still, State B brought a criminal action against the client for failing to disclose the mineral rights information in his State B disclosure statement. One of the client's defenses is that he lacked the necessary criminal intent because he was acting in good faith based on the advice of his counsel, the attorney who is now a judge. The client needs the judge's testimony to prove that the judge did indeed advise him that he was not required to disclose the mineral rights information. The judge, in State A, is beyond the subpoena power of the State B court. May the judge voluntarily testify on behalf of the client?
Yes, because his testimony would concern the giving of the advice, not his client's character. The judge may testify because he is testifying to facts, not the defendant's character. CJC Rule 3.3 prohibits a judge from testifying voluntarily as a character witness, but it says nothing about serving as an ordinary fact witness.
A solo practitioner who does municipal bond work in a single state is nearing retirement age and takes on a young attorney as a partner. Their partnership agreement provides that the solo practitioner will train the young attorney and will receive 75% of the partnership's net earnings during the first three years, and that the young attorney will receive the remaining 25%. The agreement also provides that if the young attorney leaves the partnership before the end of the first three years, he will remit to the solo practitioner 75% of all fees he earns thereafter from municipal bond work in the state. Finally, the agreement provides that if the solo practitioner and the young attorney are still partners when the solo practitioner retires, the young attorney will pay the solo practitioner retirement benefits of $3,000 per month until the solo practitioner's death; in return, upon his retirement, the solo practitioner will turn over to the young attorney all of the partnership assets (including goodwill) and will not thereafter practice municipal bond law in the state. Are the solo practitioner and the young attorney subject to discipline for entering into this partnership agreement?
Yes, because of the restriction on the young attorney's right to practice if he leaves the partnership within the first three years. The solo practitioner and the young attorney are subject to discipline for entering into the partnership agreement because of the restriction on the young attorney's right to practice. A lawyer must neither make nor offer a partnership agreement that restricts a lawyer's right to practice after termination of the relationship, except for an agreement concerning benefits upon retirement. [ABA Model Rule 5.6(a)] Under the agreement here, if the young attorney leaves the partnership within the first three years, he must pay the solo practitioner 75% of the fees he earns thereafter from municipal bond work he does in the state. This provision unduly restricts the young attorney's right to practice. (A) is wrong because it overlooks the improper restriction on the young attorney's right to practice.
A lawyer represents a defendant who is being prosecuted in a jury trial for an armed robbery and attempted murder that occurred on June 15. The accused has pleaded not guilty to the charges, but the lawyer knows that the accused is the perpetrator and that the crime occurred at approximately 10 p.m. The victim testifies that she is certain that the crime occurred at midnight. The accused has an airtight alibi for midnight. At 11:40 p.m. he was arrested on a drunk driving charge, and he was in police custody until 6 a.m. on June 16. On cross-examination, the lawyer does nothing to challenge the victim's recollection of the time of the attack. Also, as the trial unfolds, the lawyer does not introduce any evidence at her disposal that would help establish the time of the attack as 10 p.m. The lawyer calls as a witness a police officer who testifies that the accused was in fact in custody at midnight on the night in question. The accused does not testify and is acquitted. Are the lawyer's actions proper?
Yes, because she did not present false evidence. The lawyer's actions were proper because she did not offer false evidence, and she is under no duty to volunteer harmful facts. [See ABA Model Rule 3.3; comment 14 to ABA Model Rule 3.3] In fact, to do so would probably be a breach of ethics.
A journalist regularly wrote a column that appeared twice each week in a newspaper of general circulation in the town in which he lives. The journalist approached an attorney with offices in that town and told the attorney that her name would appear frequently in the column in a favorable light if the attorney would supply the journalist with "behind the scenes" items about local judges, lawyers, and important or otherwise interesting cases. The attorney readily agreed to the journalist's proposal, and she began supplying information to the journalist. The attorney's name did appear often in the journalist's column, and always in a very favorable light. Is the attorney subject to discipline?
Yes, because she has given consideration for favorable publicity. This is the best answer here because ABA Model Rule 7.2(b) prohibits a lawyer from giving anything of value in return for a recommendation of the lawyer's services.
An attorney is defending her client in a civil fraud case in which it is relevant to know what advice the client received in confidence from an independent certified public accountant. The jurisdiction has no evidentiary privilege for confidential communications between accountants and their clients. The accountant telephoned the attorney and asked how he should respond to the plaintiff's lawyer's request to speak with him privately about the case. Reasonably believing that the accountant would not be harmed by refusing to talk informally with the plaintiff's lawyer, the attorney responded that if the plaintiff's lawyer subpoenaed him to testify, then he must do so, but encouraged him not to talk to the plaintiff's lawyer about the case unless under subpoena. Was the attorney's advice to the accountant proper?
Yes, because the accountant acted as the client's agent in rendering accounting advice to the client. The attorney's advice to the accountant was proper because the accountant acted as the client's agent in rendering accounting advice. An attorney may request that someone other than a client refrain from voluntarily giving relevant information to another party if the person is a relative or agent of the client and the attorney reasonably believes that the person's interests will not be adversely affected by refraining from giving the information. [ABA Model Rule 3.4(f)] Here, the attorney reasonably believed that refusing to talk informally with the plaintiff's counsel would not harm the accountant, and the accountant was the client's agent in rendering the accounting advice
An attorney placed an advertisement that ran daily in the classified section of a newspaper of general circulation that is widely read in the area where the attorney practiced. Besides stating the attorney's office address and telephone number, and identifying the attorney as a licensed attorney, the advertisement included the following statement: "DIVORCES - LOW RATES!!!" "Just $300, plus costs, for uncontested divorces" "According to bar association surveys, the "low average" fee in the area for an uncontested divorce is $325, plus costs." Is the attorney's advertising proper?
Yes, because the attorney's rates really are low. Although statements that fail to state material information are considered misleading and therefore improper [ABA Model Rule 7.1], the attorney has clearly stated that the low rate applies only to uncontested divorces and does not imply in any way that contested divorces can be obtained for the same rate.
An attorney had an office in a small town located on the extreme western border of the state in which he was licensed to practice. The attorney received a retainer from a client, with the agreement that the attorney would use funds from the retainer for such things as filing fees when they came due. There was no federally insured bank or savings institution in the small town in which the attorney's office was located. The nearest such institution in the state was located in the county seat, which was over 60 miles away from the attorney's office and where the attorney and the client resided. Therefore, the attorney decided, with the client's consent, to put the client's money in his client trust account in a bank in a medium-sized city located just across the state line in a neighboring state. The account was fully insured by the federal government, but was not an interest-bearing account. The attorney is not licensed to practice law in that state. Was it proper for the attorney to place the client's money in an account in the neighboring state?
Yes, because the client consented to the deposit in the neighboring state A client's funds are ordinarily deposited in an account where the lawyer's office is located, but they can be deposited elsewhere with the client's consent. [ABA Model Rule 1.15(a)]
In a trade secret action against a corporation pending in a United States district court, the plaintiff's lawyer gave timely notice that on July 22 at 9 a.m., he would take the deposition of the corporation's vice president for manufacturing and marketing. From earlier discovery in the case, the plaintiff's lawyer had good reason to believe that the vice president's testimony would prove that the corporation had stolen and was using the plaintiff's trade secrets. On the appointed day, the defense lawyer showed up with no witness; she explained that the vice president was a very busy man and had been unavoidably detained on a trip to one of the corporation's factories in Asia. The plaintiff's lawyer rescheduled the deposition for August 3, and the defense lawyer promised to have the witness available that day. On August 3, the defense lawyer again showed up with no witness, explaining that he had to take his aged mother to the doctor that day. The plaintiff's lawyer rescheduled the deposition for August 14. On August 14, the defense lawyer showed up for the deposition in the company of a nine-year-old boy, whom she introduced as the vice president. Upon questioning by the plaintiff's lawyer, the defense lawyer laughingly explained that the young boy was the vice president's son, that he knew nothing about the case, and that the vice president was unable to attend. At that point, the plaintiff's lawyer invited the defense lawyer to accompany him to see the judge to whom the case was assigned. After hearing the story, the judge asked the defense lawyer what day and time the witness would assuredly be available, and the defense lawyer said that August 16 would be good. The judge then entered a formal order that the deposition would be taken that day. The judge also warned that the defense lawyer would be sanctioned if she did not present the witness on August 16, and that the issues of trade secret misappropriation and use would be deemed proven in plaintiff's favor. Alas, on August 16, the defense lawyer again showed up alone, explaining that the vice president had to make an unexpected trip out of state. After appropriate notice and hearing, the judge ordered that the issues of trade secret misappropriation and use would be deemed proven in plaintiff's favor. She also ordered the vice president to pay 60% of the plaintiff's expenses and attorneys' fees incurred because of the failed deposition attempts, and she ordered the defense lawyer to pay the other 40% of plaintiff's expenses and attorneys' fees. Was the judge correct in holding the defense lawyer subject to litigation sanction?
Yes, because the defense lawyer violated the court's discovery order by showing up on August 16 without the witness. There are several legal theories on which sanctions could be imposed here, but the most obvious is Rule 37 of the Federal Rules of Civil Procedure, which is specifically designed for discovery abuse. When a party's managing agent fails to show up for a properly scheduled deposition, Rule 37 gives the judge a wide choice of sanctions, including such things as: an order that the issues in question be deemed proven in favor of the innocent party; an order forbidding the offender from offering proof on the issues in question; an order striking the offender's pleadings; an order finding the offender guilty of contempt of court; and an order that the offending party, its lawyer, or both must pay the innocent party's expenses and attorney fees incurred because of the violation. (A) is better than (B) because (B) implies an incorrect legal standard; a lawyer can be sanctioned under Rule 37 even if she did not act obstinately or disrespectfully.
A federal prosecutor is stationed in State A and is gathering evidence to support federal racketeering charges against a swindler. The prosecutor believes in good faith that a wealthy banker in State B has personal knowledge about three federal felonies committed by the swindler, but the banker will not disclose what he knows. The prosecutor discovers from a secret informant that the banker illegally drained off $4.7 million from a failing State B bank-a state felony punishable by 10 years in prison. The prosecutor therefore mails a letter from his office to the banker, stating in relevant part: "I am coming to State B next week. If you don't give me what I need concerning the swindler, I am going to tell the State B prosecutors what you did to that bank." Is the federal prosecutor subject to criminal liability because of his evidence-gathering technique?
Yes, because the federal prosecutor made an interstate threat to accuse the banker of a crime for the purpose of extracting valuable information that he could use against the swindler. The federal prosecutor is subject to criminal liability because his evidence-gathering technique amounted to extortion, an interstate threat against the banker for the purpose of extracting information to use against the swindler. Under modern statutory law, the crime of extortion covers obtaining anything of value, tangible or intangible, by making various kinds of threats, including a threat to accuse a person of a crime. [See, e.g., 18 U.S.C. §875(d)-felony to obtain something of value by transmitting in interstate commerce a threat to accuse a person of a crime; see also Perkins & Boyce, 442-52] The information that the federal prosecutor wanted from the banker was something of value in the swindler investigation, and the prosecutor clearly threatened to accuse the banker of a crime if the banker did not cooperate. Furthermore, the threat was transmitted interstate, thus bringing it within the scope of the federal statute cited above.
A local attorney has recently defended a client in a civil action tried before a jury. The client lost the case, and the plaintiff was awarded a substantial amount of damages. The attorney receives an anonymous, handwritten letter stating that one of the jurors in the plaintiff's case was bribed to influence other members of the jury to side with the plaintiff and to award a large sum in damages. The lawyer hires a local private investigator to investigate the juror to determine if the anonymous charges are true, and instructs the investigator to take care to do nothing that would involve coercion or harassment. Is it proper for the attorney to hire the private investigator?
Yes, because the investigation is to be conducted in such a manner as not to harass the jurors. ABA Model Rule 3.5 prohibits a lawyer from communicating with a discharged juror if the communication involves misrepresentation, coercion, duress, or harassment. [ABA Model Rule 3.5(c)(3)] Thus, the lawyer can hire a private investigator only if the investigation is not conducted in a harassing manner.
An attorney has a high-profile divorce law practice in the town in which he resides. Because of his heavy caseload, the attorney often appears before the four chancery judges of the county court. One of the chancery judges is getting married, and he sends a wedding invitation to the attorney. The attorney wishes to send the judge, as a wedding gift, an imported Italian machine that makes espresso and cappuccino coffee because he knows that the judge loves fine coffee. The coffee machine sells for $200 at the town's best cooking equipment store. The attorney sent the coffee machine to the judge, and the judge duly made a public report of the gift. Was it proper for the attorney to send the coffee machine to the judge?
Yes, because the judge made a public report of the gift. ABA Model Rule 3.5(a) forbids a lawyer from seeking to influence a judge by means prohibited by law. CJC Rule 3.13(C)(3) permits a judge to accept a gift from someone who has come or is likely to come before the judge if the judge files a public report of the gift. (A) is wrong because there is no specific value that is tied to undue influence.
An amateur inventor comes to an attorney with an invention he wants to patent. The inventor explains that he and a competitor have been racing one another to come up with the ideal cleaning solution. If the inventor's competitor were to find out that the inventor was at the patent stage, and worse, if he found out the inventor's formula, the inventor would be ruined. The attorney, a trained and certified patent attorney, agrees to represent the inventor in the patent process. The invention involves complex chemical formulae, and the attorney's particular area of expertise is electronic devices. However, having worked with inventions of all types, she has no doubt that she can properly shepherd the solution through the patent process. In putting together the necessary paperwork, the attorney asks two associates in her firm who hold chemistry degrees to help her out on the project. In due time, the inventor's product receives a patent. The total bill for legal fees was $60,000, which was reasonable for the work done. When the attorney received the inventor's final payment, she decided to give the two associates each a $10,000 bonus from the fee. Are the attorney's actions proper?
Yes, because with the aid of her associates, she was competent to handle the matter. The attorney's actions are proper. With the aid of her associates, the attorney, an experienced patent lawyer, was clearly competent to handle the case. (B) is wrong because it states one of the limitations on fee splitting between lawyers in different firms. It does not apply to lawyers in the same firm.
A lawyer works full-time for the United States Department of Agriculture's Forest Service. She is assigned to a particular region within State A, and both her office and home are in State A. She went to law school and is admitted to practice in State B; she is not a member of the bar in any other state. Her work for the Forest Service does not require her to litigate, mediate, or arbitrate claims before any tribunal. She is strictly an office lawyer, and most of her workday is spent advising Forest Service managers on environmental law issues that arise under federal law or under the law of State A. To earn some extra money, the lawyer moonlights as an estate planner, drafting wills and trust agreements for other Forest Service employees who live and work in State A. She does not advertise her estate planning services, and she serves only Forest Service employees, not the general public. Is the lawyer subject to discipline by State A for the unlicensed practice of law?
Yes, with respect to her moonlighting as an estate planner, but not with respect to her environmental law work for the Forest Service. ABA Model Rule 8.5(a) permits State A to discipline an out-of-state lawyer "if the lawyer provides or offers to provide any legal services" in State A. Here, the lawyer's environmental law work for the Forest Service is proper under ABA Model Rule 5.5(d)(1) because she is providing that work only to her employer-client, and the work does not require pro hac vice admission in State A. However, State A could discipline her for moonlighting as an estate planner; she is not providing that work to her employer-client, even though her estate planning clients are Forest Service employees. [Comment 16 to ABA Model Rule 5.5]
